text:
    Kenneth SCOTT v. Clyde Layton LENOIR and Peggy Sue Lenoir.
    2040891.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.
    Tyrone Townsend, Birmingham, for appellant.
    Bill Speaks, Clanton, for appellees.
   THOMAS, Judge.

Kenneth Scott appeals from the dismissal of his complaint against Clyde Layton Lenoir and Peggy Sue Lenoir. We dismiss the appeal as untimely filed.

Scott sued the Lenoirs, alleging wrongful eviction and defamation. The Lenoirs moved to dismiss the action, arguing that Scott lacked standing to assert his claims. The trial court dismissed the case on January 7, 2005. On February 4, 2005, Scott filed a timely postjudgment motion, which the trial court set for a hearing on March 28, 2005. Scott later filed several other motions, including a motion requesting leave to amend his complaint, that the trial court set for hearing on that same date. However, the trial court continued the hearing to April 29, 2005. On May 17, 2005, the trial court purported to deny Scott’s postjudgment motion and the other pending motions. Scott filed his notice of appeal to the Alabama Supreme Court on June 27, 2005. The supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

A postjudgment motion is generally deemed to be denied by operation of law if the trial court fails to rule on the motion within 90 days of its filing. Rule 59.1, Ala. R. Civ. P. The trial court loses jurisdiction to consider the motion after the expiration of the 90-day period. Id.; Byrd v. Petelinski, 757 So.2d 400, 402 (Ala.2000). Scott’s postjudgment motion, which was filed on February 4, 2005, was deemed denied by operation of law on May 5, 2005. Rule 4(a)(1) and Rule 4(a)(3), Ala. R.App. P., require that a notice of appeal be filed within 42 days of the denial of a post-judgment motion. Scott’s notice of appeal was filed on June 27, 2005, more than 42 days after the denial of his postjudgment motion by operation of law on May 5, 2005, and his appeal is therefore untimely. Because the failure to file a timely notice of appeal is a jurisdictional defect, we dismiss this appeal. Byrd, 757 So.2d at 402-03; Schiffman v. City of Irondale, 669 So.2d 136, 138 (Ala.1995) (“The time for filing a notice of appeal is jurisdictional.”).

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . In August 2005, the appeal was stayed pending the outcome of bankruptcy proceedings. The appeal proceeded after the stay was lifted in November 2007.

      . Although neither exception applies to the present case, we note that, to avoid the application of the 90-day rule, the parties may expressly agree on the record to extend the 90-day period or they may seek an extension from the appellate court to which the appeal in the case would lie. Rule 59.1.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Robert McCOLLUM d/b/a McCollum Wrecker Service v. Bettye KEATING, as administratrix of the estate of Maurine Brinson, deceased, et al.
    2061182.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.

      Byron McMath of McMath Law Firm, Jasper, for appellant.
    D. Alan Thomas and Bradley J. McGibo-ney of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc.
   PITTMAN, Judge.

In January 2002, Bettye Keating (“the administratrix”), acting as the adminis-tratrix of the estate of Maurine Brinson, deceased (“the decedent”), sued several defendants in the Walker Circuit Court, alleging various claims stemming from the decedent’s death in an automobile collision involving her Toyota brand automobile. Among other things, the complaint stated products-liability claims against Toyota Motor Corporation and Toyota Motor Sales U.S.A., Inc. (“the Toyota defendants”), including claims that the automobile in which the decedent was traveling at the time of the collision was not reasonably safe for its intended purpose. The Toyota defendants answered and denied any liability to the administratrix.

In February 2002, counsel for Toyota Motor Sales U.S.A. filed a motion for a protective order pursuant to Rule 26(c), Ala. R. Civ. P., stating that the action concerned the existence of a defect in a particular Toyota brand automobile and averring that “[ijrreversible prejudice” would result if the automobile were “sold, changed, altered, repaired, tested or disposed of’ before “disposition of the claims made by the [administratrix] against [that] [defendant.” The motion sought the issuance of an order “prohibiting the parties, the parties’ representatives, attorneys, agents, witnesses, or any other person from disposing of, selling, repairing, altering, changing, testing, or in any way materially affecting” the automobile (emphasis added). Later that month, the trial court granted the motion and entered a protective order that, among other things, prohibited “any other person or party ... from disposing of, selling, repairing, altering, changing, testing, or in any way materially affecting” the automobile. No review of that order was sought by any party. In March 2002, Toyota Motor Sales U.S.A. moved for an amendment of the protective order, stating that the automobile in question was in the custody of “non-parties” “McCollum Wrecker Service” and “Mr. Robert McCollum”; the trial court subsequently amended its protective order to expressly make that order “applicable to McCollum Wrecker Service and Mr. Robert McCollum, as well as any other individual or entity which may have possession of the” automobile. Again, no review of the order was sought.

In December 2002, a “Statement of Mechanic Lien,” ostensibly made pursuant to Ala.Code 1975, § 35-11-210, was filed in the action by “McCollum Wrecker Service”; the lien statement claimed a lien against any judgments, settlements, and settlement agreements for reasonable charges incurred by the purported lien-holder in storing, from January 19, 2000, the Toyota Corolla automobile involved in the accident made the basis of the adminis-tratrix's claims. At that time, neither “McCollum Wrecker Service” nor any other person sought to intervene as a party to the action pursuant to Rule 24, Ala. R. Civ. P., and the trial court took no action to unilaterally add any parties to the action at that time.

In April 2003, the Toyota defendants jointly filed a motion in the trial court that, among other things, sought an order compelling Robert McCollum and “McCollum Wrecker Service” to allow inspections of the automobile at issue, averring that counsel for Robert McCollum and “McCol-lum Wrecker Service” had previously refused to make the automobile available for inspection because no storage fees related to the automobile had been paid. Although no written order granting that motion appears in the record, the trial court apparently ordered Robert McCollum and “McCollum Wrecker Service” to allow inspection of the automobile; the record contains a letter sent by counsel for Robert McCollum and “McCollum Wrecker Service” in which he requested that the court “reconsider its ruling on the motion” filed by the Toyota defendants because “Mr. McCollum is a nonpatty to this proceeding” (emphasis in original). There is no indication in the record that the requested reconsideration took place, nor was appellate review sought.

In July 2004, the administratrix and all defendants in the case other than the Toyota defendants jointly filed a document labeled “Stipulation For Partial Dismissal” in which it was agreed that the administra-trix’s claims against the signatory defendants were due to be dismissed with prejudice. The trial court thereafter entered an order dismissing all claims except those pending against the Toyota defendants. That court further directed the entry of a final judgment as to the dismissed claims. See Rule 54(b), Ala. R. Civ. P.

In August 2004, McCollum filed a motion requesting that the accrued storage fees for the subject automobile be either taxed as costs or taxed against the Toyota defendants. However, McCollum did not request to intervene in the action or otherwise seek recognition as a party to the action between the administratrix and the Toyota defendants. The Toyota defendants filed a response in opposition to McCollum’s motion, asserting that McCol-lum was not a party, that his claimed storage fees were both statutorily unauthorized and greater than the fees generally charged in the local community, and that he was not entitled to a mechanic’s lien.

Although McCollum’s motion and the Toyota defendants’ response were argued before the trial court in November 2004, the case lay dormant for over two years following that hearing. Finally, in March 2007, the case was set for trial. On May 8, 2007, the trial court entered an order denying McCollum’s motion concerning the taxation of storage fees. No further filings in the case occurred until July 2007, when counsel for the administratrix and counsel for the Toyota defendants filed a joint motion to dismiss the case; that motion was granted on August 7, 2008, and the case was dismissed with costs taxed as previously paid. However, two days after the entry of the judgment dismissing the case, McCollum filed a motion seeking relief from the judgment, averring that his attorney had not been informed of the May 8, 2007, order or of the July 2007 joint motion to dismiss; on August 28, 2007, McCollum filed another document objecting to the judgment of dismissal, again noting, in part, that the trial court’s amended protective order had been directed to “Robert McCollum and McCollum Wrecker Service, who were not a party [sic ] to this action.” The administratrix and the Toyota defendants filed responses in opposition to McCollum’s filings, averring, among other things, that McCollum had not been a party to the action. Although the notice of appeal directed to the August 7, 2007, judgment that was filed by McCollum on September 18, 2007, indicates that the trial court denied the relief he had requested in his postjudgment filings, the record contains no copies of any order expressly denying that relief.

In their appellate briefs, McCollum and the Toyota defendants have expressed disagreement concerning the fundamental issue of whether McCollum is a party with standing to appeal from the trial court’s judgment of dismissal in order to challenge the trial court’s failure to tax as costs the storage fees claimed by McCollum. We agree with the Toyota defendants that McCollum was not a party to the case in the trial court.

Although McCollum argues for the first time on appeal that the amended protective order issued by the trial court in March 2002 “brought [him] under the court’s jurisdiction,” there is no indication in the record that the trial court ever took the additional step of joining McCollum as a plaintiff or a defendant or otherwise made him a party. McCollum asserted to the trial court that he was not a party on at least three occasions of record: at a hearing on May 1, 2004, in a letter to the trial court on May 8, 2004, and in a post-judgment filing on August 28, 2007. Furthermore, we note that Rule 26(c), Ala. R. Civ. P., plainly envisions a trial court’s authority to make orders that apply to nonparties in the discovery process because it states that a trial court may make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” and that a motion to obtain such an order may be filed “by a party or by the person from whom discovery is sought” (emphasis added). Thus, even assuming that McCollum’s argument that he was a party in the trial court may properly be considered by this court, the fact that the protective order as amended expressly extended to McCollum does not support the proposition that McCollum was added as a party.

McCollum’s position in this case is substantially similar to that of appellant Boschert Merrifield Consultants, Inc., in Boschert Merrifield Consultants, Inc. v. Masonite Corp., 897 So.2d 1048 (Ala.2004). In that case, after a class of plaintiffs (represented by Judy Naef) had sued the manufacturer of hardwood home siding, the parties settled their dispute and, in their settlement agreement, designated a particular company as a “independent claims administrator” to “administer the relief’ provided for in the settlement agreement and provided for the appointment of a special master in the case. Id. at 1049. Soon thereafter, Boschert, a “claims service,” began marketing its services to the members of the plaintiff class, services that, in consideration of a fee payment, included offering an assessment of the success of potential claims, obtaining information necessary to submitting a claim to the administrator, and undertaking the administrative responsibilities incident to filing a claim. Subsequently, the special master entered two orders that directed Boschert to pay the manufacturer $100 per claim it filed on behalf of purported class members and to make restitution to the manufacturer as to various improperly submitted claims; in addition, the administrator ceased accepting claims filed by Boschert. The trial court declined to grant Boschert’s three motions seeking relief from the decisions of the special master and the administrator, certifying its decision as to those motions as a final judgment. Boschert appealed from that decision to the Alabama Supreme Court.

The Alabama Supreme Court, noting Boschert’s admission in the trial court that it was not a party to the action, agreed with the manufacturer’s position that Bosc-hert lacked standing to appeal:

“ ‘Unless a person is a party to a judgment, he [cannot] appeal from that judgment. That fundamental principle is one of the oldest in Alabama jurisprudence.’ Daughtry v. Mobile County Sheriffs Dep’t, 536 So.2d 953, 954 (Ala.1988). ‘One must have been a party to the judgment below in order to have standing to appeal any issue arising out of that judgment.’ Mars Hill Baptist Church of Anniston v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 980 (Ala.1999) (emphasis added [in Bosc-hert ]). See also Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221 (Ala.1993).
“Boschert has never been a defendant, a representative, or a member of the plaintiff class in the Naef case. It is not an intervenor. Consequently, the notice of appeal filed by Boschert failed to invoke the appellate jurisdiction of this Court. For these reasons, the appeal must be dismissed.”

897 So.2d at 1051-52.

Similarly, McCollum, although the target of discovery and evidence-preservation orders in this case, never took the steps permitted by the Alabama Rules of Civil Procedure (see Rule 24, Ala. R. Civ. P.) to make himself a party to the judgment from which he has purported to appeal. He thus lacks standing to appeal from the judgment; therefore, we lack jurisdiction over the appeal and dismiss it ex mero motu. See Rule 2(a)(1), Ala. R.App. P. Because our conclusion that McCollum lacks standing to seek review of the trial court’s judgment is dispositive, we preter-mit consideration of whether McCollum may properly maintain an independent action against the administratrix and/or the Toyota defendants to recoup storage fees.

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . In that motion, it was first revealed that "McCollum Wrecker Service” is a trade name under which McCollum does business rather than the name of a separate business entity.


author: BRYAN, Judge.

text:
    Rodger BOLDEN v. WISE ALLOYS, LLC.
    2070084.
    Court of Civil Appeals of Alabama.
    Sept. 19, 2008.

      J. Zach Higgs, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   BRYAN, Judge.

On December 1, 2005, Rodger Bolden sued his employer, Wise Alloys, LLC, seeking workers’ compensation benefits. On August 6, 2007, the trial court entered a judgment denying Bolden workers’ compensation benefits. The trial court subsequently set aside its judgment of August 6, 2007. On September 18, 2007, the trial court rendered a judgment denying Bolden workers’ compensation benefits. Bolden appealed.

Although neither party addresses the issue, this court must first determine whether it has jurisdiction over this appeal.

“ ‘Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.’ McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004). ‘[T]he question whether a judgment is final is a jurisdictional question.’ Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App. 2002).”

Naylor v. Naylor, 981 So.2d 440, 441 (Ala. Civ.App.2007).

The trial court’s September 18, 2007, judgment was never input into the State Judicial Information System (“SJIS”). Rule 58(c), Ala. R. Civ. P., which was amended effective September 16, 2006, provides:

“(c) Entry of Order or Judgment. Upon rendition of an order or a judgment as provided in subdivision (a) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court renders the judgment.”

The Committee Comments to Amendment to Rule 58 Effective September 19, 2006, state, in part:

“This amendment to Rule 58(c) reinstates the distinction between the substantive, judicial act of rendering a judgment and the procedural, ministerial act of entering a judgment. Thus, the rule is also amended to include a new provision that interest on a judgment begins to run at the time of rendition of the judgment. The jurisdictional need for an unambiguous, universally available judgment-entry date for the sake of an appeal does not apply to the question of the commencement of the running of interest- on the judgment, as to which the parties can determine the date of rendition, if necessary, after the judgment becomes final and either no appeal is taken or all appeals have been exhausted.”

Although this action was initiated in 2005, our supreme court has stated that the September 19, 2006, amendment to Rule 58(c) applies to cases that were pending at the time the amendment became effective. Ex parte Luker, [Ms. 1051805, August 31, 2007] — So.3d -, - (Ala.2007). Because the September 18, 2007, judgment was rendered, but never input into the SJIS, and therefore never entered, the judgment is a nonfinal judgment and will not support an appeal. Spradlin v. Lovvorn, 891 So.2d 351, 353 (Ala.Civ.App.2004); see also Gilbreath v. Harbour, 3 So.3d 875, 878 (Ala.Civ.App. 2008) (dismissing an appeal as one taken from a nonfinal judgment when that judgment had been rendered but never input into the SJIS); and Martin v. Martin, 998 So.2d 1081, 1083 (Ala.Civ.App.2008) (stating that, although a trial court indicated its denial of a postjudgment motion on the case-action summary, the motion was actually denied by operation of law because “that order was not entered on the [SJIS]”). Therefore, we dismiss the appeal for lack of appellate jurisdiction.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


author: THOMPSON, Presiding Judge.

text:
    Samuel J. HENDRICKS v. KW PLASTICS, INC.
    2070324.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2008.

      Samuel J. Hendricks, pro se.
    Samuel M. Ingram of Carpenter, Ingram & Mosholder, LLP, Montgomery, for appellee.
   THOMPSON, Presiding Judge.

Samuel J. Hendricks sued his former employer, KW Plastics, Inc., seeking workers’ compensation benefits and alleging a claim of retaliatory discharge.

The trial court conducted a bench trial on Hendricks’s workers’ compensation claim. On December 14, 2007, the trial court entered an order in which it found that Hendricks had suffered a compensa-ble injury, that KW Plastics had paid for medical treatment for that injury, and that KW Plastics had paid Hendricks temporary-total- and temporary-partial-disability benefits. The trial court further found, however, that there was no evidence indicating that Hendricks had suffered any permanent impairment or vocational loss as a result of his on-the-job injury. Therefore, in its December 14, 2007, order, the trial court ruled in favor of KW Plastics on Hendricks’s workers’ compensation claim, with the exception that KW Plastics was ordered to provide any future medical treatment Hendricks might require for his on-the-job injury.

On January 10, 2008, Hendricks filed a pro se notice of appeal in this court in which he challenged the December 14, 2007, order. However, an appeal is effective only from a final judgment. This court asked the parties to submit briefs on the issue whether the December 14, 2007, order had adjudicated all Hendricks’s claims against KW Plastics so as to render that order a final judgment. This court later reinvested the trial court with jurisdiction for 14 days to make a determination whether to enter a final judgment with regard to the workers’ compensation claim. See Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982) (“Once an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.”). During the time in which it was reinvested with jurisdiction, the trial court, on March 18, 2008, entered an order certifying the December 14, 2007, order as final pursuant to Rule 54(b), Ala. R. Civ. P. Hendricks’s notice of appeal from the December 14, 2007, order became effective on March 18, 2008, when the trial court certified the earlier order as final pursuant to Rule 54(b). See Rule 4(a)(4), Ala. R.App. P. (“A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.”). Hereinafter, we refer to the trial court’s ruling on Hendricks’s workers’ compensation claim as the “March 18, 2008, judgment.”

While the appeal of the March 18, 2008, judgment was pending in this court, the trial court, on May 2, 2008, entered a summary judgment in favor of KW Plastics on Hendricks’s retaliatory-discharge claim. Hendricks did not file .a notice of appeal challenging the May 2, 2008, judgment on his retaliatory-discharge claim. Hendricks’s brief on appeal contains an argument asserting that the trial court erred in entering a judgment in favor of KW Plastics on his retaliatory-discharge claim. However, because Hendricks did not appeal the May 2, 2008, judgment on that claim, this court does not have jurisdiction to consider the argument. See Rule 2(a)(1), Ala. R.App. P. (a timely notice of appeal is required to invoke the jurisdiction of an appellate court).

In that part of his appellate brief challenging the March 18, 2008, judgment on his workers’ compensation claim, Hendricks argues that the trial court erred in ruling in favor of KW Plastics. However, in his brief submitted to this court, Hendricks cites as supporting authority only general references to Amendments 1 through 14 of the United States Constitution and to the Alabama Constitution of 1901. Hendricks fails to make specific arguments to this court attempting to explain the relevance of those authorities. Accordingly, we cannot say that Hendricks has complied with Rule 28(a)(10), Ala. R.App. P., which requires an appellant’s brief to contain “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.”

We recognize that Hendricks appears pro se before this court. However,

“[a] party acting pro se must comply with legal procedure and court rules and may not avoid the effect of the rules due to unfamiliarity. Hines v. City of Mobile, 480 So.2d 1203 (Ala.1985); Hubbard v. Montgomery, 372 So.2d 315 (Ala.1979). Rules governing the operation of the courts of this state are no more forgiving to a pro se litigant than to one represented by counsel. Bowman v. Pat’s Auto Parts, 504 So.2d 736 (Ala.Civ. App.1987). In view of [Hendricks’s] failure to substantially comply with the rules, we pretermit a discussion of the issues he attempts to raise in this case. It is not the duty nor the function of an appellate court to perform one’s legal research. Lokey v. State Department of Industrial Relations, 527 So.2d 1327 (Ala.Civ.App.1988).”

Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889, 890 (Ala.Civ.App.1991).

The failure to comply with Rule 28 leaves this court with nothing to review; accordingly, we affirm the trial court’s March 18, 2008, judgment. Sullivan v. Alfa Mut. Ins. Co., 656 So.2d 1233 (Ala. Civ.App.1995); Lockett v. A.L. Sandlin Lumber Co., supra; and Black v. Allen, 587 So.2d 349 (Ala.Civ.App.1991).

AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


author: LAGOA, J.

text:
    Michele S. JACOBSON and Aline Sklaire, Appellants, v. Joyce Glasel SKLAIRE, Appellee.
    No. 3D09-3009.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Christopher Q. Wintter, Hollywood, for appellants.
    Shutts & Bowen and William Jay Palmer and Brandon R. Levitt, Miami, for ap-pellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   LAGOA, J.

Michele S. Jacobson and Aline Sklaire, as successor co-trustees of the Jacob C. Sklaire Trust (hereafter “co-trustees”), appeal an order denying their Florida Rule of Civil Procedure 1.540 motion to vacate an April 13, 2009, order. Because the trial court abused its discretion in denying the motion, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Following an evidentiary hearing, on April 13, 2009, the trial court signed an order entitled “Order Granting Plaintiffs Motion to Determine Individual Liability of Co-Trustees,” finding that the co-trustees were jointly and severally personally liable to the plaintiff-beneficiary Joyce Sklaire for attorney’s fees and costs. Counsel for all parties received a conformed copy of this order, which had not been stamped “filed for record.” After the co-trustees’ counsel received the order on April 14, he diligently checked the clerk’s online docket on a daily basis to determine the order’s rendition date.

During this same timeframe, the beneficiary sought to execute on the April 13 order. A trial court clerk informed the beneficiary’s counsel (or process server) that the April 13 order could not be located and requested evidence that the trial court had signed the April 13 order. On May 5, the beneficiary’s counsel, on an ex parte basis, provided an identical copy of the April 13 order to the trial court, which the trial court immediately signed. The May 5 order was filed with the Clerk on that same date.

On May 6, 2009, the co-trustees’ counsel once again checked the Clerk’s online docket and discovered that an Order Granting Plaintiffs Motion to Determine Individual Liability of Co-Trustees had been filed of record (ie. rendered) on May 5, 2009, and also learned that a Writ of Garnishment had been issued by the Clerk based upon this Order.

As a result of this discovery and, on that same day, the co-trustees’ counsel traveled to the courthouse to personally review the court file. The co-trustees’ counsel was surprised to see filed in the record a new Order signed on May 5, 2009 and stamped May 5, 2009. The Order was identical in all respects to the Order dated April 13, 2009. However, the April 13, 2009 Order was neither in the court file nor docketed. At that time, a trial court clerk informed the co-trustees’ counsel that the April 13 order had not been filed of record.

Upon learning this information, counsel for the co-trustees called opposing counsel, Brandon Levitt. Mr. Levitt informed the co-trustees' counsel that the original Order signed by the trial court on April 13, 2009 had been lost and never placed “of record” and that he had decided to proceed ex parte to obtain a replacement Order in order to be in a position to obtain a post-judgment Writ of Garnishment and execute upon the judgments. Indeed, Mr. Levitt relied exclusively on the May 5, 2009 Order in order to obtain a Writ of Garnishment to execute against the co-trustees’ assets.

On June 3, 2009, the co-trustees’ counsel filed a notice of appeal of the May 5 order. Jacobson v. Sklaire, Case No. 3D09-1528 (Fla. 3d DCA June 3, 2009). At the time that the notice of appeal was filed, the May 5 order was the only order filed of record or docketed in the trial court below.

In August, while examining the record prepared by the clerk for the appeal in 3D09-1528, the co-trustees’ counsel found that the April 13 order purportedly had been filed of record on April 16. A trial court clerk informed counsel that on July 10 the clerk’s office located the original April 13 order, which was stamped “filed for record” on April 16, and proceeded to docket the order as of April 16 based on the date stamp. Shortly thereafter, the co-trustees filed a verified motion to vacate the April 13 order pursuant to Florida Rules of Civil Procedure 1.540(a) and (b) based on clerical mistake and mistake, inadvertence, surprise or excusable neglect. Following a hearing, the trial court denied the motion.

II. RENDITION OF ORDER

Rule 9.110(b) of the Florida Rules of Appellate Procedure provides that jurisdiction of the appellate court shall be invoked by filing a notice of appeal within 30 days of “rendition” of the order to be reviewed.

Rule 9.020(h) of the Florida Rules of Appellate Procedure further provides that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Of significance to this appeal is the third requirement — the filing of the signed, written order with the clerk of the lower tribunal. “An order may be reduced to writing and signed but it is still not rendered within the meaning of rule 9.020(h) until it has been filed.” Philip J. Padovano, Florida Appellate Practice, § 2.3, at 35 (2010).

III. ANALYSIS

On appeal, the co-trustees assert that the trial court abused its discretion in denying their motion to vacate the April 13, 2009 order. We agree with the co-trustees that they are entitled to reversal because of the trial court clerk’s mistake or excusable neglect in failing to locate the original April 13 order and informing counsel for the co-trustees that the order was not filed of record. As a result of this clerical mistake, the trial court executed a replacement order that was filed by the clerk on May 5. Although the trial court clerk eventually located the April 13 order (three months after it was entered) and purported to docket it nunc pro tunc based on the April 16 stamp date, that does not change the fact that the May 5 order was the only order filed, docketed or otherwise in the court file when the co-trustees’ counsel checked the docket and when they filed their notice of appeal. As the trial court found, the co-trustees did not learn that the clerk had located and docketed the April 13 order until August when the time had expired for filing a notice of appeal.

Based on these circumstances — including the clerk’s representation to co-trustees’ counsel, the representations made to co-trustees’ counsel by the beneficiary’s counsel, the beneficiary’s counsel’s decision to act ex parte, and the fact that the beneficiary relied on the May 5 order as the basis for her post-judgment writ of garnishment — we conclude that the co-trustees properly relied on the rendition of the May 5 order for purposes of pursuing their appeal to this court.

Indeed, at the hearing on the co-trustees’ motion to vacate, the trial court stated that it “should have said this [May 5 Order] vacates the old judgment, because it’s intended to substitute for it, since it is not locatable.” We agree, and we note that had Mr. Levitt not proceeded ex parte, counsel may have nipped this issue in the bud.

In Williams v. Roundtree, 464 So.2d 1293 (Fla. 1st DCA 1985), appellants moved to have the judgment set aside, arguing that the trial court’s judicial assistant misinformed counsel as to the correct date of rendition and that such error was the result of a clerical mistake or excusable neglect justifying Rule 1.540 relief. Relying on this misinformation, the appellants, who had received a copy of the signed judgment, failed to seek timely review of the judgment. The First District reversed the order denying Rule 1.540 relief concluding that the appellants were entitled to relief, as “the erroneous information supplied to [counsel] resulted from excusable neglect,” and amounted to ‘a “clerical mistake” arising from an “accidental slip or omission.’ ” Id. at 1295 (citation omitted) (quoting Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1165 (Fla.1979)). See also Chandler v. Fla. Farm Bureau Mut. Ins. Co., 546 So.2d 1179, 1180 (Fla. 4th DCA 1989) (holding that counsel was “entitled to rely on the information given to him by the clerk [of court’s office] in the execution of its ministerial duty” when such reliance on the clerk’s misinformation resulted in the failure to prosecute the case timely); Tessmer v. Walker, 833 F.2d 925 (11th Cir.1987)' (holding that where counsel acted reasonably in determining when judgment was filed counsel was entitled to rely on clerk’s inaccurate information (because of a lost docket sheet) as to whether the order had been entered and was entitled to have judgment vacated and re-entered to restart period for filing notice of appeal).

Similarly, here, the co-trustees’ counsel was “shown to be unaware of the date of rendition,” Williams, 464 So.2d at 1295, as a result of the clerk’s statements that the April 13 order had not been filed of record and that it could not be located. Indeed, the beneficiary’s counsel’s actions in seeking, ex parte, an identical second order evidences the existence of the problem, and compounded the error as two identical orders now existed — one rendered and one missing in action until July 10. Additionally, it is unacceptable for the beneficiary and her counsel to execute writs of garnishment based on the May 5 order but then claim that the co-trustees were required to appeal from the lost April 13 order.

Accordingly, we conclude that the trial court abused its discretion in denying the motion to vacate the April 13 order.

Reversed and remanded.

      . The beneficiary had sought dismissal of the 3D09-1528 appeal as untimely, arguing that the April 13 order should govern for purposes of that appeal. This Court denied the motion to dismiss and relinquished jurisdiction for the trial court to consider the co-trustees’ motion to vacate the April 13 order. After the trial court’s denial of tire motion to vacate, this Court stayed the appeal in 3D09-1528 pending resolution of this appeal.

      . See, e.g., Keller v. Belcher, 256 So.2d 561, 563 (Fla. 3d DCA 1971) (noting that under Rule 1.540(a) "clerical mistakes include only errors or mistakes arising from [an] accidental slip or omission”); Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004) (reversing order denying Rule 1.540 relief based on excusable neglect where counsel was misled as to the judgment’s correct rendition date by form and placement of clerk’s filing and recording stamps, and clerk made same mistake when telephonically reporting incorrect filing date to counsel); see also Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1164-65 (Fla.1979) (stating that where trial attorney failed to mail order to appellate attorney "trial court obviously concluded that the clerical error resulted from excusable neglect or inadvertence from which the petitioners should be afforded relief, particularly in view of [the trial court’s] entry of a duplicative order .... [T]his clearly constitutes a 'clerical mistake’ arising from an 'accidental slip or omission,' within the purview of Rule 1.540(a).”) (emphasis added).


author: LEVINE, J. WARNER, J.,

text:
    Daniel DELMONICO, an individual and MYD Marine Distributor, Inc., a Florida corporation, Appellants, v. Arthur Rodgers TRAYNOR, Jr., an individual, and Akerman, Senterfitt & Eidson, P.A., a Florida professional association, Appellees.
    No. 4D08-4035.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2010.

      Holiday Hunt Russell of The Law Offices of Holiday Hunt Russell, Chartered, Fort Lauderdale, and Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, for appellants.
    Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and William M. Martin of Peterson Bernard, Fort Lauderdale, for appellees.
   LEVINE, J.

The issue presented is whether the trial court was correct in granting summary judgment on appellants’ claim of defamation and tortious interference based on the litigation privilege. We find that the trial court correctly granted summary judgment, and we affirm.

The claim of defamation and tortious interference brought in this case emanates from another underlying case in which DelMonico, the appellant here, filed a complaint against Donovan Marine, Inc., and its employee, Tony Crespo. DelMonico alleged that Crespo told several people that DelMonico supplied prostitutes to the owner of a company previously doing business with Donovan Marine as their method to take away business from Donovan and bring it to DelMonico. Appellee Traynor, while acting as defense counsel for Donovan Marine, published to DelMonico’s ex-spouses and business peers the same allegation that DelMonico hired prostitutes to get business and that DelMonico faced prosecution for prostitution. Appellants filed claims of action for defamation and tortious interference against the appellees as a result of these statements.

The complaint alleged that the appellee had contacted DelMonico’s ex-wife and told her that DelMonico had taken a customer away from Donovan by enticing the purchasing agent with prostitutes. The appellee also contacted a former employee of DelMonico’s company, MYD Marine Distributor, and stated to him that Del-Monico’s method to take an account was to supply a prostitute to the owner. The appellee encouraged the former employee to provide additional examples of DelMoni-co’s “unethical business practices.” The appellee contacted the former owner of a business and stated that DelMonico was “being prosecuted for prostitution.” The appellee also contacted another ex-wife of the appellant and stated that DelMonico was being prosecuted for using prostitution to get business. The appellee also contacted principals of other marine services companies about the prosecution of DelMonico for procuring prostitutes and growing his business in this manner. The appellee stated that he was part of the prosecution of DelMonico for procuring prostitutes and illegal business dealings. Subsequently, New Nautical, a manufacturer with whom MYD Marine Distributor had an exclusive contract, received calls from companies stating they no longer wanted to purchase products from MYD Marine Distributor.

All of the above statements made by the appellee occurred during potential witness interviews, were performed by the appel-lee in his role as an attorney, and were made purportedly for the purpose of defending his client during pending and active litigation. The appellee’s comments and statements were made in connection with, and during the course of, an existing judicial proceeding. The appellee was acting as defense counsel for Donovan Marine in litigation in which DelMonico asserted that Donovan’s employee defamed Del-Monico by making accusations “about prostitution.” The appellee denied saying that DelMonico was being prosecuted for prostitution but did maintain that all communications he had with the ex-wives and employees were done in furtherance of and as part of his work as an attorney defending his client.

The trial court granted summary judgment based upon absolute immunity conferred by the litigation privilege. Our standard of review of this order granting summary judgment is de novo. Palm Beach Pain Mgmt., Inc. v. Carroll, 7 So.3d 1144, 1145 (Fla. 4th DCA 2009). Whether allegedly defamatory statements are covered under absolute privilege is a question of law to be decided by the court. Resha v. Tucker, 670 So.2d 56, 59 (Fla.1996); Cassell v. India, 964 So.2d 190 (Fla. 4th DCA 2007).

“[Ajbsolute 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.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994); see also Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla.2007). “The falsity or maliciousness of the alleged statements is irrelevant to this analysis.” Ross v. Blank, 958 So.2d 437, 441 (Fla. 4th DCA 2007); see also Levin, 639 So.2d at 607.

Because the statements complained of were made by the appellee while he was acting as defense counsel in the underlying litigation, and the statements bore “some relation” to the proceeding, they were absolutely privileged as a matter of law. Levin, 639 So.2d at 608; see also Fernandez v. Haber & Ganguzza, LLP, 30 So.3d 644 (Fla. 3d DCA 2010) (concluding that the actions of the law firm in preparing and filing a notice of lis pen-dens were privileged because they occurred during the course of a judicial proceeding); Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999) (concluding that statements made by lawyer during interview of potential witness in preparation for trial were absolutely privileged). Interviewing a witness in preparation for and connected to pending litigation is absolutely privileged. Stucchio, 726 So.2d at 373.

The rule of absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the judicial proceedings. Levin, 639 So.2d at 608. The reason for the rule of absolute immunity is that “the public interest of disclosure outweighs an individual’s right to an unimpaired reputation” and “participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id. The Florida Supreme Court concluded that there would be a “chilling effect” on the adversary system without absolute immunity. Id.

The appellee should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding. The Florida Supreme Court merely requires that the “act” have “some relation to the proceeding.” Id. Clearly, speaking to potential witnesses during the pendency of litigation is of “some relation to the proceeding.” If we were to find that absolute immunity be conferred on the participants only at formalized hearings or court proceedings, we would have the unintended consequence of attorneys not being able to question witnesses in preparation for eventual formalized proceedings without fear of civil liability. “[Witnesses would be subjected to retaliatory law suits for statements made pre-deposition. This might cause many witnesses to refuse to talk to lawyers without first being subpoenaed. Proper preparation for depositions would thus become difficult, if not impossible.” Stucchio, 726 So.2d at 374. Attorneys would be subject to the same chilling effect if their work is outside of the courtroom, but has “some relation to the proceeding.”

Other jurisdictions have recognized an even more expansive interpretation of “some relation to the proceeding,” applying the absolute privilege doctrine to out-of-court communications occurring without the presence of both counsel and even going so far as to apply the doctrine to communications that occur before suit is even initiated. See, e.g., Jackson v. Bell-South Telecomms., 372 F.3d 1250, 1276 (11th Cir.2004) (stating that “events 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”) (quoting Hoover v. Van Stone, 540 F.Supp. 1118, 1122 (D.Del.1982)); Pettitt v. Levy, 28 Cal.App.3d 484, 104 Cal.Rptr. 650, 654 (1972) (stating that the absolute privilege doctrine “extends to preliminary conversations and interviews between a prospective witness and an attorney if they are some way related to or connected with a pending or contemplated action”) (citation omitted); Jones v. Coward, 193 N.C.App. 231, 666 S.E.2d 877, 880 (2008) (holding that an attorney’s statement to a potential witness preliminary to trial is absolutely privileged, provided the statement is relevant and is related to the subject matter of the controversy); Russell v. Clark, 620 S.W.2d 865, 868 (Tex.Civ.App.1981) (justifying the extension of the absolute privilege doctrine to out-of-court communications made by attorneys preliminary to a judicial proceeding because an attorney “must seek discovery of evidence, interrogate potential witnesses, and often resort to ingenious methods to obtain evidence” but “must not be hobbled by the fear of reprisal”); Pratt v. Nelson, 164 P.3d 366, 376 (Utah 2007) (interpreting the term “judicial proceeding” “broadly” to include certain pretrial statements and “communication [] preliminary to a proposed judicial proceeding”) (citation omitted).

The Florida Supreme Court has also recognized that there could be a remedy if there was misconduct. There could be “discipline of the courts, the bar association, and the state.” Levin, 639 So.2d at 608 (citation omitted). Additionally,

a trial judge has the inherent power to do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice. In particular, a trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity....

Id. at 608-09.

Without the shield of absolute immunity, our legal system would be further diminished by attorneys worrying, consciously or not, whether they will be made subject to litigation for merely inquiring into areas deemed controversial, unfair, or unjust by the opposing side. Counsel must be able to inquire unfettered into areas with some relation to the pending litigation, without the concern of further litigation hanging over them like a “sword” and having that “sword” impede the advocacy of counsel.

Affirmed.

DAMOORGIAN, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

An attorney has absolute immunity for events occurring during a judicial proceeding. However, where, as it is alleged here, an attorney makes defamatory statements which injure a person outside of those “judicial proceedings,” the attorney should be entitled only to qualified immunity. Thus, because on the motion for summary judgment there remain disputed issues of material fact as to whether the attorney made the statements and whether they were made with the intent to injure the appellant, I would reverse.

Appellant, Daniel DelMonico, is president of MYD Marine Distributor, Inc. MYD is the exclusive worldwide distributor of SeaHawk marine paint under a contract with New Nautical Coatings, Inc., SeaHawk’s manufacturer.

In 2003 DelMonico sued Tony Crespo and his employer, Donovan Marine, Inc., a competitor of MYD, for defamation. What follows is a general summary of the allegations presented in DelMonico’s complaint.

In his complaint, DelMonico alleged Crespo had told at least six people that DelMonico had supplied prostitutes to an owner of a company doing business with Donovan in a successful attempt to have that company take its account away from Crespo and Donovan. Donovan retained appellee Arthur Traynor to defend it in the defamation suit. The record in this case does not reveal whether that suit is still pending.

During the course of DelMonico v. Donovan, Traynor called several people whom he identified as “witnesses.” These included DelMonico’s two ex-wives and several business contacts. When he called the ex-wives, he informed them that he was “prosecuting” DelMonico for prostitution. He also told one of them that DelMonico had been unfaithful to her during their marriage. He further told them that Del-Monico had taken one of Donovan’s customers by enticing its purchasing agent with prostitutes.

Traynor contacted a former employee of MYD and repeated to that employee Del-Monico’s alleged method of obtaining business by using prostitutes. He asked the employee to supply him with more examples of DelMonico’s use of these unethical business practices.

Not stopping with the wives and employees, Traynor contacted an employee of Bradford Marine, a substantial customer of MYD’s and consumer of the SeaHawk products of which MYD was the distributor. Traynor told the employee that Del-Monico was being prosecuted for prostitution. Later, Traynor contacted the father of the president of New Nautical. During that conversation Traynor also told him that DelMonico was being prosecuted for prostitution.

After the conversation with Bradford Marine employees, Bradford’s purchasing agent contacted New Nautical to inform them that Bradford would no longer purchase the SeaHawk paint from MYD. If forced to deal with MYD, Bradford would not buy SeaHawk products at all. In addition, other companies who purchased Sea-Hawk products through MYD contacted New Nautical and informed them that they no longer wished to deal with MYD and DelMonico, having been told that DelMoni-co was being prosecuted for prostitution and/or buying prostitutes for purchasing agents.

DelMonico sued Traynor and his law firm for defamation as well as tortious interference with the MYD contract with New Nautical due to the loss of MYD’s exclusive distributorship. Although there does not appear to be any record evidence of the amount of the loss, at the hearing on the motion for summary judgment, Del-Monico’s attorney stated that the exclusive dealership was worth between $7 and $9 million.

Traynor answered and raised the affirmative defense of absolute immunity. In his deposition, while he denied making the statements attributed to him by the foregoing individuals, he stated that he contacted the individuals in furtherance of his defense of Donovan Marine in the defamation litigation, identifying them as prospective witnesses.

The trial court granted Traynor’s motion for summary judgment based upon his affirmative defense of absolute immunity of statements made during a judicial proceeding, relying upon Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla.1994). Although the court questioned “whether or not developing a witness for litigation is in the course of a judicial proceeding that’s contemplated by Levin ” and whether the statements made by Traynor in this case were relevant to the inquiry in the Crespo suit, the court nevertheless felt bound by Levin.

I think the court was right to question whether an attorney’s defamatory statements to others in the course of his defense of a lawsuit fall within the absolute immunity granted in Levin. After careful reflection, I conclude that they do not. I would reverse.

Our courts have long extended absolute immunity to statements and actions taken in judicial proceedings so long as those statements are relevant to the subject of inquiry. See Levin, 639 So.2d at 608; Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992); Ange v. State, 98 Fla. 538, 123 So. 916 (1929), receded from in part in Fridovich; Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907). Levin extended absolute immunity for statements and actions taken in judicial proceedings to include not only actions for defamation, slander, libel, and the like, to any other tortious behavior, so long as it has some relation to the proceeding.

This rule of privilege as applied to statements made in the course of judicial proceedings is not restricted to trials of actions, but includes proceedings before a competent court or magistrate in the due course of law or the administration of justice which is to result in any determination or action by such court or officer. This privilege extends to the protection of the judge, parties, counsel and witnesses, and arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.

Ange, 123 So. at 917. As explained in Levin,

This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings. Fñdovich. In determining that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Id.; Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977). Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided.

639 So.2d at 608.

Despite this need for free and full disclosure, the court did not apply absolute immunity to complaints to police which instituted judicial proceedings in Fñdo-vich, instead opting to apply only a qualified privilege to such statements. In doing so, the court provided a remedy where individuals made intentionally false and malicious statements to the police. In a footnote, the court distinguished this investigatory process from formal judicial proceedings, because “the potential harm which may result from the absolute privilege is somewhat mitigated by the formal requirements such as notice and hearing, the comprehensive control exercised by the trial judge whose action is reviewable on appeal, and the availability of retarding influences such as false swearing and perjury prosecutions.” Fridovich, 598 So.2d at 69 n. 5.

In Fñdovich the court referred with approval to the Restatement (Second) of Torts section 587 (1977). The Restatement defines judicial proceedings as “all proceedings in which an officer or tribunal exercises judicial functions.” Restatement (Second) of Torts § 587, cmt. f.

Other courts provide more explicit definitions of which proceedings are included. In Hearst Corp. v. Skeen, 130 S.W.3d 910, 926 (Tex.App.2004), rev’d on other grounds by 159 S.W.3d 633 (Tex.2005), the Texas court stated that the privilege applied to “communications made in the course of a judicial proceeding including any statement made by the judges, jurors, counsel, parties,' or witnesses in open court, pretrial hearings, depositions, affidavits, and any of the pleadings or other papers in the case.” Id. at 925-26 (footnote omitted). New Jersey, on the other hand, does not include depositions within the judicial proceedings protected by the privilege. See Marxe v. Marxe, 233 N.J.Super. 247, 558 A.2d 522, 524 (1989). The New Jersey courts have held that because a deposition is information gathering and “all present are not given the opportunity to be heard,” depositions do not constitute judicial proceedings, which in New Jersey are described as follows: “[Tjhere must be parties, and opportunity to be heard, and the tribunal must proceed either to a determination of facts upon evidence or of law upon proved or conceded facts. When both these elements are present, there is a judicial proceeding. [Mitchel v. Cropsey, 177 App.Div. 663, 164 N.Y.S. 336, 339 (1917)]”. Id. at 524.

After discussing the doctrine of absolute immunity as applied in federal courts, the Seventh Circuit determined that a municipality’s attorneys were not absolutely immune from suit for unlawful investigative activities conducted in defending the municipality in a lawsuit. See Auriemma v. Montgomery, 860 F.2d 273 (7th Cir.1988). The court explained that the reasons for granting attorneys absolute immunity do not always apply in the pretrial investigatory process:

[T]he primary reason for granting attorneys absolute immunity is that their unique function as advocates requires that they be able to present their client’s case at trial without intimidation or harassment. Although subject to abuses, there are sufficient safeguards in the judicial process to protect litigants from overzealous advocates. These same reasons would also warrant extending absolute immunity to actions taken by advocates within the broad confines of the civil discovery procedures available in both state and federal courts.... Conducting discovery under the rules of civil procedure falls within the unique duties of an advocate and such activities are conducted in the adversarial arena where opposing counsel and the trial court can quickly put the brakes on unethical or unlawful behavior. The same cannot be said, however, for pretrial investigations that occur outside the rules of discovery.
When an attorney in a civil suit steps beyond the rules of discovery to obtain facts in an extra-judicial investigation, he steps into a gray area where his actions start closely resembling those of a police officer or private investigator. Although there is certainly nothing wrong with an attorney conducting extra-judicial investigations, the conduct of such investigations is removed from the judicial process and is not a function that rests uniquely within the duties of an advocate. More important, such investigations take place outside the adversarial arena with its attendant safeguards that provide real and immediate checks to abusive practices.

Id. at 278 (emphasis supplied) (citation omitted). The court determined that attorneys performing extra-judicial investigations would be protected by qualified immunity.

No case from the Florida Supreme Court has applied the doctrine of absolute immunity to out-of-court statements by an attorney to a witness in the course of investigation in connection with litigation. Justice Wells in his opinion, concurring in part and dissenting in part, in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla.2007), raised the issue of what constitutes a “judicial proceeding,” although Echevarria involved a mortgage reinstatement letter sent by a law firm as a precondition to foreclosure.

The majority cites Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999), which involved statements made by a witness interviewed by a lawyer representing a parent in an abuse case. Judge Harris’s opinion concluded that such statements were made in connection with a judicial proceeding. However, the opinion is of little precedential value, as Judge Griffin concurred in result only, and Judge Sharp dissented. Thus, no majority supported either written opinion. Judge Sharp concluded that the witness was protected only with a qualified privilege because the statement was made “in an investigative mode, preliminary to calling him as a witness in a judicial proceeding or deposing him under oath,” in addition to the fact that the statements were not pertinent to the judicial proceeding. Id. at 375.

If the purpose of absolute immunity is to preserve the attorney and party’s right to present their case at trial without fear of intimidation, I do not think that policy is 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. In fact, rather than enhance the truth-seeking function of trials, such conduct as alleged here may taint the entire process by influencing witnesses with false and defamatory information about the adversary. This case serves as an example. While the allegations are contested by Traynor and his firm, the attorney is accused of contacting MYD’s business partners and defaming DelMoni-co to them, resulting in the business partners terminating their dealings with MYD and DelMonico, causing substantial damage. If the attorney had made statements at a deposition, at least DelMonico’s attorney could have been present to object. As it is, the witness hears defamatory information regarding DelMonico from a member of a respected law firm. DelMonico has no protection from such damaging falsehoods when uttered essentially in secret.

When balancing the two competing interests set forth in Levin, I think extending absolute immunity to the conduct alleged in this case upsets a fine balance between the individual’s right to his reputation and a free and full disclosure of facts in a judicial proceeding. I would apply only a qualified privilege to such conduct. Just as in Fridovich, that standard would deter frivolous lawsuits as it would require the plaintiff to prove both that the statements were false and that they were made with express malice, i.e., “that the defendant’s primary motive in making the statements was the intent to injure the reputation of the plaintiff.” 598 So.2d at 69. But it would also deter participants in the investigatory process outside judicial proceedings from intentionally harming their adversary with impunity.

For these reasons, I would reverse the trial court.


author: SALTER, J. COPE, J.

text:
    TRUST CARE HEALTH SERVICES, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D09-2568.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2010.
    Rehearing and Rehearing En Banc Denied Jan. 14, 2011.
    G. Richard Strafer; Scott A. Srebnick, Miami, and Manuel Alex Arteaga Gomez for appellant.
    Tracy Lee Cooper, Chief Appellate Counsel, for appellee.
    Before COPE, GERSTEN, and SALTER, JJ.
   SALTER, J.

Trust Care Health Services, Inc. appeals the denial of its application for a change in ownership of a licensed home health agency by the Agency for Health Care Administration (AHCA). We affirm.

Facts

In May 2006, a licensed Florida home health agency known as All Med Network Corp. was terminated by the Medicare program for site visit deficiencies. AHCA revoked All Med’s license for the same reasons five months later. At the relevant times, Roberto Marrero was All Med’s administrator and vice president. On the record before us, Marrero was not the subject of any personal administrative or disciplinary action relating to All Med’s termination from Medicare and the license revocation by AHCA.

In August 2007, Trust Care (an existing home health agency) filed an application for change of ownership based on Marre-ro’s purchase of all of the issued and outstanding stock of Trust Care. The printed application form required “yes or no” answers to these questions:

9(c) Has the applicant, owner or any individual having 5% or more financial interest been excluded, suspended, terminated or involuntarily withdrawn from participation in Medicare, Medicaid in any state or any other governmental or private health care/insurance program? _Yes_No
If yes, enclose the following information: the full name of the person, the position held and a description/explanation of any exclusions, permanent suspensions, terminations or involuntary withdrawals from any of the above listed programs. Proof of compliance with the requirements for disclosure of ownership and control interest under the Medicare or Medicaid programs may be accepted in lieu of this submission.
9(d) Has the applicant, owner or any individual having 5% or more financial interest previously been found by any licensing, certifying or professional standards board to have violated the standards or conditions that relate to home health-related licensure or certification, or to the quality of home health-related services provided? _Yes_No
If yes, enclose the following information: the full name of the person, the position held and a written description/explanation of any violations and the actions taken by the relevant board.

Trust Care, through Marrero, answered each of these questions “no.” After a review of the application, AHCA sent Trust Care an “omission letter” describing corrections, omissions, or revisions necessary to complete the application. Under section 408.806(8)(b), Florida Statutes (2007), the requested information “must be filed with the agency within 21 days after the agency’s request ... or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited.” The omission letter identified two items that were subsequently remedied by Trust Care and are not at issue here. The omission letter also asserted that Marrero’s responses to items 9(c) and 9(d) were incomplete. As to 9(c), AHCA stated “Mr. Marrero was a controlling interest of All Med Network Corp. at the time their Medicare was terminated. Please provide the explanation for the exclusion as requested in item 9c.” As to 9(d), AHCA stated “As a corporation director and an administrator, Mr. Marrero was previously found to have violated conditions that relate to home health licen-sure. Please provide the explanation for the violations as requested in item 9d.”

Through its attorney, Trust Care replied that its answers regarding items 9(c) and (d) were “legally and factually accurate in response to the specific wording of the application's question.” Regarding item 9(e), Trust Care further stated:

The “owner” of 100% of the stock in this matter is Roberto Marrero. Roberto Marrero has never received any of the sanctions requested of him in Q. 9c. A facility for which Roberto Marrero was the former Administrator at [sic] was terminated from the Medicare/Medicaid program based upon site-visit deficiencies. He did not own any stock and as such could not have a “controlling interest” as you indicate.

Regarding item 9(d), Trust Care also replied:

The “owner” of 100% of the stock in this matter is Roberto Marrero. Roberto Marrero, personally, as the question states “owner,” has never received any of the sanctions requested of him in Q. 9d. A facility for which Roberto Marre-ro was the former Administrator at [sic] voluntarily surrendered its AHCA-HHA license based upon site-visit deficiencies. However, this information is not elicited in Q. 9d for which you are referring.

In response, AHCA issued a “notice of intent to deny” regarding the application for a change of ownership. The pertinent statutes and rules cited by AHCA for the action included section 408.815(l)(a) and (e), Florida Statutes (2007):

(1) In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest:
(a) False representation of a material fact in the license application or omission of any material fact from the application.
(e) The applicant, licensee, or controlling interest has been or is currently excluded, suspended, or terminated from participation in the state Medicaid program, the Medicaid program of any other state, or the Medicare program.

Trust Care requested a formal administrative hearing regarding the matter. An administrative law judge considered mem-oranda of law and undisputed facts submitted by Trust Care and AHCA in lieu of a formal hearing and oral argument. The final administrative order upheld AHCA’s application of the applicable statutes and denial of Trust Care’s change of ownership application. The order included this analysis:

4. Trust Care argues that Section 408.815(1) applies only to controlling interests of the current applicant or licensee. Marrero was the controlling interest of All Med at the time All Med’s Medicare participation was terminated. All Med is neither the applicant nor licensee here. Trust Care therefore maintains that Marrero’s former status as a controlling interest of All Med is not within the reach of the statute for purposes of Trust Care’s CHOW [change of ownership] application. Trust Care takes the position that Mar-rero personally would have had to have been terminated from Medicare in order for Section 408.815(1) to apply to Trust Care’s CHOW application.
5. Trust Care’s interpretation does not comport with the plain meaning of the language in Section 408.815(1). The statute clearly states that certain past actions by a controlling interest may serve as a basis for denial of a license or CHOW. The disqualifying actions include the situation in which the “applicant, licensee, or controlling interest has been ... terminated from participation in ... the Medicare program [emphasis supplied].” This language lists “applicant,” “licensee” and “controlling interest” in the alternative. Thus the statutory language provides that the termination of any one of those entities from Medicare supports a denial of the application. It does not require, for purposes of this termination, that the controlling interest be associated with the current applicant or licensee at the time the controlling interest was terminated. Nothing in the statute states that a denial of an application based on the termination of a controlling interest from Medicare is restricted to a Medicare termination that took place when the controlling interest was the controlling interest of the applicant. The statute allows a past termination of an applicant’s controlling interest from participation in Medicare to serve as grounds for denial of that applicant’s application whether or not the controlling interest was associated with the applicant when the termination occurred.
6. The Agency’s interpretation is not unreasonable. As the Agency points out, the interpretation offered by Trust Care would allow a 100% owner of a home health agency to commit Medicare fraud, be terminated from Medicare, and then simply form a new corporation as the 100% owner and be eligible for licen-sure. It is precisely this type of activity that Section 408.815(1) appears to have been intended to prevent.

Trust Care’s appeal to this Court followed.

Analysis

The starting point for this type of purely interpretive, administrative issue is our deference to an agency’s interpretations of law on matters within the agency’s legislatively-defined scope of authority and expertise. Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987 (Fla.1985). An agency develops important technical and practical expertise in the area it oversees. Rizov v. State, Bd. of Professional Engineers, 979 So.2d 979 (Fla. 3d DCA 2008). For these reasons, we will affirm an agency’s interpretation of law regarding such a matter unless it is shown to be “clearly erroneous.” Verizon Florida, Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002).

In the present case, the record includes an affidavit from the Deputy Secretary, Division of Health Quality Assurance of AHCA. The Deputy Secretary stated under oath that she “was involved in the drafting and review of the revision of Florida Statutes related to health care facility regulation including Chapter 408 Florida Statutes.” Her affidavit continues:

[W]ith regard to Section 408.815(l)(e) Florida Statutes (2007), Affiant states that part of the intent of this legislation was to ensure that individuals that have been controlling interests in licensed entities that were terminated from the Medicaid or Medicare programs do not receive a license from AHCA to operate a new entity... .Affiant further states that Section 408.815(l)(e) Florida Statutes (2007) has been consistently interpreted by AHCA to authorize the Agency to deny a license application from an applicant where the controlling interest of the applicant was the controlling interest of an entity that previously was terminated from the Medicare program.

The Deputy Director’s affidavit is further supported by the scant legislative history of the statute as amended in 2006. The staff analysis accompanying the House bill ultimately creating Part II of Chapter 408 noted that the legislation allows AHCA to impose a license denial for regulatory violations affecting resident health, safety or welfare. See Fla. H.R. Comm, on H.B. 7141 (2006) Staff Analysis (rev.Apr.20, 2006).

There is no doubt that the statute could have been written in a manner that would more precisely describe the rules of attribution applied by AHCA. Two things are very clear, however: (1) Marrero had a “controlling interest” in All Med when it was terminated by Medicare and its license was revoked by AHCA, and (2) fifteen months later, when Trust Care applied for a change of ownership to permit Marrero to own 100% of Trust Care and thus control its license, Marrero was still terminated from continued participation in Medicare through All Med. In other words, the conditions that resulted in All Med’s loss of license and Medicare participation — conditions which arose when Marrero controlled All Med as its administrator and vice president — were never remedied or explained to the satisfaction of AHCA and Medicare.

The Legislature also included a catch-all requirement for applicants to completely disclose all material facts in an application. In a change of ownership application, the proposed new owner or controlling interest is actually the focus of AHCA’s attention. The applicant itself (here, Trust Care) holds an active license at the time of the application, and the question is whether the new person or entity should be allowed to obtain and exercise control. Section 408.815(l)(a) authorizes AHCA to deny an application for false representation or omission of a material fact in an application. Marrero, as proposed owner and controlling interest in the applicant, could have disclosed his involvement in All Med in the initial application. He did not do so. When AHCA consulted its own data and found the connection, it invited him to complete Trust Care’s disclosure by explaining the All Med problems and explaining why Marrero’s control of that entity was omitted.

Instead of opting for complete candor, Trust Care — with Marrero’s obvious approval as 100% owner — responded with a technical statutory argument and no further explanation of the disturbing events at All Med in 2006. Marrero and Trust Care continue to offer nothing in the record to assuage a regulator’s obvious and legitimate concern. If the problems at All Med occurred because of unauthorized acts or omissions by subordinates and could not have been prevented by Marrero, any fair-minded person should conclude that Mar-rero’s proposed acquisition of the Trust Care license is entitled to a new look. But the sudden Medicare termination and voluntary surrender of All Med’s home health agency license because of a site visit by regulators, occurring when Marrero was administrator and vice president, is not some mere bagatelle.

The fitness of license applicants, particularly those involving “regulation of occupations which are engaged in by privilege rather than right and which are potentially injurious to the public welfare,” is subject to agency discretion that may extend beyond the express standards and guidelines articulated by the legislature. Astral Liquors, Inc. v. State, Dep’t. of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 432 So.2d 93, 95-96 (Fla. 3d DCA 1983), decision approved by 463 So.2d 1130 (Fla.1985). Home health agencies provide nursing care, therapy, health aide services, dietetics and nutrition assistance, and medical supplies to a vulnerable population of clients. For this additional reason, AHCA did not commit clear error or abuse its broad discretion in requiring Trust Care and Marrero to be more forthcoming as part of the application and review process (and in denying Trust Care’s application when it failed to do so).

Affirmed.

GERSTEN, J., concurs.

COPE, J.

(dissenting).

This is an appeal of an order denying a Home Health Agency Application for Change of Ownership. The question is whether the appellee Agency for Health Care Administration (“AHCA”) correctly interpreted the standard form application and the regulatory statute. As the Agency’s interpretation is contrary to the plain language of the questionnaire and the statute, we should reverse the order now before us.

In 2006, the appellant Trust Care Health Services, Inc. was granted a license to operate a home health agency in Virginia Gardens, Florida. In 2007, the then owner sold all of the stock of Trust Care to Roberto F. Marrero. This transaction transferred control of the corporation to Mr. Marrero.

Trust Care filed its Home Health Agency Application for Change of Ownership. AHCA issued a notice of intent to deny the application for change of ownership, maintaining that the application omitted a required disclosure on questions (9)(c) and (d). Trust Care replied that the question on the application, which derives from the applicable statute, was being incorrectly interpreted by AHCA. After an informal hearing before AHCA’s in-house hearing officer, AHCA denied the application and Trust Care has appealed.

The questions at issue here are questions (9)(c) and (d). In order to put these questions in context, we must first consider the preliminary parts of the Application form.

As relevant here, the Application asks for:

(1) HOME HEALTH AGENCY’S NEW INFORMATION
This question asks for name, address, and telephone number of the home health agency, along with the applicable licenses it holds.
(3) NEW OWNERSHIP (individual or entity that will directly own the home health agency)
This question asks for name and address of the new owner, along with employer identification number and how the new owner is organized, e.g., corporation, partnership, individual, etc.
(4) HOME HEALTH AGENCY’S CURRENT INFORMATION [if different from information in item (1) above]
(5) CURRENT OWNERSHIP (individual or entity that directly owns the home health agency)
(6) IDENTIFY THE PRINCIPALS OF THE NEW OWNERSHIP
This question asks for name and address of President, Vice President, and other officers or partners.
(7) FOR-PROFIT ENTITIES
List individuals and/or legal entities who have at least 5% financial interest in the entity listed in item (2) above.

We now come to the two questions at issue here. Those questions are:

(9) FOR ALL OWNERSHIPS
(c) Has the applicant, owner or any individual having 5% or more financial interest been excluded, suspended, terminated or involuntarily withdrawn from participation in Medicare, Medicaid in any state or any other governmental or private health care/insurance program? YESDNOD
If yes, enclose the following information: the full name of the person, the position held and a description/explanation of any exclusions, permanent suspensions, terminations or involuntary withdrawals from any of the above listed programs. Proof of compliance with the requirements for disclosure of ownership and control interest under the Medicare or Medicaid programs may be accepted in lieu of this submission.
(d) Has the applicant, owner or any individual having 5% or more financial interest previously been found by any licensing, certifying or professional standards board to have violated the standards or conditions that relate to home health-related licensure or certification, or to the quality of home health-related services provided? YESG nod
If yes, enclose the following information: the full name of the person, the position held and a written description/explanation of any violations and the actions taken by the relevant board.

(Emphasis in original).

Question (9)(c) asks whether the applicant (Trust Care) or the owner (Mr. Mar-rero) has been excluded, suspended, terminated, or involuntarily withdrawn from participation in Medicare, Medicaid, or any other governmental or private health care/insurance program. Trust Care and Mr. Marrero answered the question “No.”

Question (9)(d), asks whether Trust Care or Mr. Marrero has previously been found by any licensing, certifying, or professional standards board to have violated the standards or conditions that relate to licensure, certification, or quality of care. Again, the answer was “No.”

AHCA ruled that the answers to questions (9)(c) and (d) were untruthful with respect to Mr. Marrero. The agency reached that conclusion on the following analysis. Mr. Marrero was previously employed by a company called All Med Network Corp. where he was a Vice President, but was not a shareholder. In May 2006, All Med was terminated by the Medicare program and AHCA thereafter revoked its license. These administrative actions were taken against All Med but no action was taken against Mr. Marrero personally.

AHCA maintains that on question 9(c), Mr. Marrero should have answered yes, he had been terminated by the Medicare program — even though that is not true. In an analysis worthy of Kafka, AHCA says that since Mr. Marrero was an officer of All Med, he is considered to be a “controlling interest” of All Med. See § 408.803(7)(b), Fla. Stat. (2007). AHCA then says that since he was a “controlling interest” of All Med, this means that when Medicare terminated All Med from the Medicare program, the Medicare termination was also directed at Mr. Marrero individually. But it wasn’t.

In interpreting the standard form as well as the statute, the agency must follow “fundamental principles of grammar.” Stuart Yacht Club & Marina, Inc. v. State Dep’t of Nat’l Res., 625 So.2d 1263, 1268 (Fla. 4th DCA 1993). In plain English, question (9)(c) asks whether the owner of Trust Care — Mr. Marrero — has “been ... terminated ... from participation in Medicare ... or any other governmental ... health care/insurance program?” The answer to that question is clearly no. The actions taken by Medicare and AHCA were directed at All Med, not Mr. Marrero individually. The same analysis applies to question (9)(d).

With regard to statutory analysis, the Florida Supreme Court has “repeatedly explained that when the language of a statute is unambiguous and conveys a clear and ordinary meaning, there is no need to resort to other rules of statutory construction; the plain language of the statute must be given effect.” Starr Tyme, Inc. v. Cohen, 659 So.2d 1064 (Fla.1995); see Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002). A court owes no deference to an agency interpretation which is contrary to the terms of the applicable statute. Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 848 (Fla. 1st DCA 2002); see Miami-Dade County v. Gov’t Supervisors Ass’n of Fla., 907 So.2d 591, 594 (Fla. 3d DCA 2005) (same); Darbie v. State, 711 So.2d 1280, 1283 (Fla. 3d DCA 1998) (same).

For its statutory analysis, the majority opinion erroneously relies on the affidavit of Elizabeth Dudek, Deputy Secretary of AHCA. This affidavit was evidently offered in an effort to put forward AHCA’s administrative interpretation of paragraph 408.815(l)(e), Florida Statutes (2007).

The problem is that AHCA’s interpretation runs squarely contrary to the language of the statute. According to the affidavit, the Deputy Secretary says the statutory intent was “to insure that individuals that have been controlling interests in licensed entities that were terminated from the Medicaid or Medicare programs do not receive a license from AHCA to operate a new entity.” R. 201. According to the affidavit, if a home health agency was terminated by Medicaid or Medicare, AHCA can deny a license to anyone who was an officer or owner of that home health agency, even if no regulatory action was taken against the officer or owner.

But that is not what the statute says. The statute says AHCA may deny a license or change of ownership application if (among other things) “[t]he applicant ... or controlling interest has been ... excluded from participation in the state Medicaid program ... or the Medicare program.” § 408.815(l)(e), Fla. Stat. (2007). In plain English, the inquiry is whether the applicant — Trust Care — or the controlling interest of Trust Care — Mr. Marre-ro — has been excluded from participation in Medicaid or Medicare. It is undisputed that no such action was taken against Mr. Marrero or Trust Care.

AHCA also suggests that if its interpretation is overturned, then it will be powerless to regulate home health agencies. That argument is a red herring. The question before us is whether the agency has correctly interpreted the application form, and the statute related thereto. This appeal must stand or fall on those issues. With regard to regulatory power, the Legislature has promulgated lengthy licensing standards in sections 400.471 and 400.474, Florida Statutes (2007). AHCA admits that Medicare and Medicaid have regulatory authority with respect to corporate officers, directors, and owners. 42 U.S.C. § 1320e-7a. If AHCA believes it should have more or different authority, then that issue should be addressed to the Legislature. The question before us is whether AHCA has properly interpreted the application form and statute actually in existence.

Reversal is in order in this case.

      . Trust Care’s response to AHCA in the administrative proceeding stated that All Med's license “was physically and voluntarily surrendered’’ by All Med on the same day as the AHCA site visit in May 2006. The effective date of the formal revocation followed in October of that year.

      . Federal tax and other statutes often include elaborate tests for direct and indirect control, including control through multiple layers of entities and shareholders. In this case, AHCA plainly applies a broad and less detailed test for attribution of a corporate entity’s past license and Medicare problems to a controlling interest. But this interpretation is reasonable in light of AHCA's statutory duties and when read in pari materia with the admonition against "omission of any material fact from the application."

      . According to the record, the federal Center for Medicare and Medicaid Services (CMS) terminated All Med from the Medicare program for deficiencies on May 16, 2006. Trust Care’s written response to AHCA requests for admission, executed under oath by Marrero, states that All Med’s "AHCA license was physically and voluntarily surrendered by the provider on the day of the AHCA site visit in May 2006.”

      . "Home health services” are defined in section 400.462(14), Fla. Stat. (2007).

      . A "client” for a home health agency means "an elderly, handicapped, or convalescent individual who receives companion services or homemaker services in the individual's home or place of residence.” § 400.462(6), Fla. Stat. (2007).

      . Home health agencies are regulated by part III of chapter 400, Florida Statutes (2007). Health care licensing is regulated by part II of chapter 408, Florida Statutes (2007).

      . AHCA acknowledges that even under its interpretation of the statute, denial of a change of ownership application is discretionary, not automatic. Id.; Answer Brief at 17.

      . To the extent that the affidavit attempts to set forth legislative history, that is not appropriate. The words used in the statute are clear, so resorting to legislative history is not relevant. Starr Tyme, 659 So.2d at 1067. Even if the statute were ambiguous (which it is not), the affidavit is not competent evidence of legislative history, because legislative history must be found in the Legislature's own documents, not an affidavit of an officer of an executive branch agency.


author: PER CURIAM.

text:
    SOUTHEASTERN INTEGRATED MEDICAL, P.L., Appellant, v. NORTH FLORIDA WOMEN’S PHYSICIANS, P.A., and Karen Harris, M.D., Individually, Appellee.
    No. 1D10-484.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.
    Rehearing Denied Dec. 16, 2010.

      Richard A. Harrison and Misty C. Leaf-ers at Allen Dell, P.A., Tampa; and Scott David Krueger at Scott David Krueger Chartered, Gainesville, for Appellant.
    Paul A. Donnelly, Laura A. Gross, and Jung Yoon at Donnelly & Gross, P.A., Gainesville, for Appellee.
   PER CURIAM.

Southeastern Integrated Medical, P.L. (SIMED) appeals the trial court’s order granting the Motion by North Florida Women’s Physicians (North Florida) to Dismiss SIMED’s Third Amended Complaint for Tortious Interference for failure to state a cause of action.

SIMED and North Florida both have principal places of business in Gainesville, Florida and provide medical services, including gynecology, gynecologic surgery and well woman care. On or about October 29, 2007, SIMED and Dr. Carroccio entered into a Staff Physician Employment Agreement (Employment Agreement) in which Dr. Carroccio agreed to provide professional services to SIMED’s patients as a full-time medical doctor. The parties agreed that Dr. Carroccio would perform services for a three and one-half year term, unless she provided notice of her intent to terminate her employment within 90 days. In addition, section 14 of the Employment Agreement, entitled “Covenant Not to Compete,” provided that upon termination of the business relationship, Dr. Carroccio was restricted for two years from providing medical services within a twenty-five mile radius of any SIMED medical office. Section 14 also provided SIMED with the right to seek liquidated damages in lieu of injunctive relief for breach of the non-compete provision.

On or about June 5, 2009, only eleven months into Dr. Carroccio’s contract term, SIMED became aware that North Florida solicited Dr. Carroccio to leave her employment with SIMED and to come work at North Florida. SIMED alleged that Dr. Carroccio provided North Florida with a copy of the Employment Agreement, and North Florida informed her that it had devised a plan to allow her to quit her employment with SIMED and to come work for North Florida in Gainesville without compensating SIMED as required under section 14. With actual knowledge of both the business relationship between SIMED and Dr. Carroccio and the terms of the Employment Agreement, North Florida offered Dr. Carroccio employment. Dr. Carroccio accepted the offer to work for North Florida and informed SIMED that she was quitting. SIMED alleged that it suffered damages in the loss of legitimate business interests, including substantial relationships with specific prospective or existing patients and patient goodwill.

The trial court found that SIMED failed to allege ultimate facts indicating that Dr. Carroccio had in any way breached the employment agreement “as of this time.” The court also found that North Florida’s actions were done for a competitive business purpose and, thus, were not actionable. Accordingly, the trial court dismissed the complaint for failure to state a cause of action. We find that the trial court erred in granting the motion to dismiss.

In order to state a cause of action for tortious interference with a business relationship, the plaintiff must allege

(1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.

Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985).

Based on allegations contained in the Third Amended Complaint, we find that SIMED met its burden to state a cause of action for tortious interference. SIMED pled the existence of a business relationship between itself and Dr. Carroccio, as evidenced by the Employment Agreement. SIMED alleged that North Florida had actual knowledge of the non-compete provision contained in the Employment Agreement. SIMED alleged that North Florida intentionally and unjustifiably interfered with the relationship by encouraging Dr. Carroccio to join its medical practice and to practice medicine with North Florida in Gainesville within a two-year period after leaving SIMED in breach of the non-compete provision of her Employment Agreement. See Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 386 (Fla. 4th DCA 1999); Monco Enters., Inc. v. Ziebart Corp., 673 So.2d 491, 492 (Fla. 1st DCA 1996).

Notwithstanding these allegations, the trial court found that SIMED’s complaint for tortious interference was not yet ripe, based on its determination that no actual breach had occurred because Dr. Carroccio was still employed by SIMED at the time the Third Amended Complaint was filed. However, we find that SIMED sufficiently alleged an anticipatory breach of the Employment Agreement by Dr. Carroccio, satisfying the breach element of the tortious interference claim. See Miller v. Jacobs & Goodman, 699 So.2d 729, 734 (Fla. 5th DCA 1997) (affirming the trial court’s finding of anticipatory breach where an employee “unequivocally informed” the employer that they would not abide by their employment agreement at the time they gave their two-week notice). It is well settled that a breach of contract “by anticipatory repudiation allows the nonbreaching party to terminate his own performance and bring litigation for damages.” Aberdeen Golf & Country Club v. Bliss Constr., Inc., 932 So.2d 235, 240 (Fla. 4th DCA 2005); see also, Hosp. Mortg. Group v. First Prudential Dev. Corp., 411 So.2d 181, 182 (Fla.1982) (noting that where an anticipatory repudiation occurs, the nonbreaching party has an immediate cause of action); Twenty-Four Collection, Inc. v. M. Weinbaum Constr., Inc., 427 So.2d 1110, 1112 (Fla. 3d DCA 1983) (“A requirement of actual breach as a prerequisite for anticipatory breach would totally nullify the doctrine of anticipatory breach.”). Here, Dr. Carroccio stated her intention to terminate her employment with SIMED, and SIMED alleged that Dr. Carroccio had accepted an offer of employment from a competitor located within the twenty-five mile radius prohibited by the non-compete provision of the Employment Agreement. Because SIMED satisfied the breach element of the tortious interference claim by alleging an anticipatory breach of contract by Dr. Carroccio, we find that it was error for the trial court to dismiss the Third Amended Complaint.

Further, relying on McCurdy v. Collis, 508 So.2d 380, 385 n. 2 (Fla. 1st DCA 1987), the trial court found that North Florida’s conduct was not actionable because it was in furtherance of a competitive business purpose, i.e., North Florida was free to compete with SIMED in recruiting physicians to its practice. However, because privilege to interfere with a contract is a matter to be raised as an affirmative defense, it was improper for the trial court to consider North Florida’s motives in recruiting Dr. Carroccio on a motion to dismiss. See Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 n. 4 (Fla.1992) (noting that the consideration of defenses is premature on a motion to dismiss); Abele v. Sawyer, 750 So.2d 70, 75 (Fla. 4th DCA 1999) (“Justification or privilege to interfere with a contract is a defense to a tortious interference action.”); Melbourne Med. Lab., Inc. v. Lab Corp. of America, 722 So.2d 962, 964 (Fla. 5th DCA 1998) (“[C]ompetition or economic privilege is an affirmative defense to a tortious interference claim.”). And while an affirmative defense that appears on the face of the complaint may be considered by the trial court in a motion to dismiss, see Abele, 750 So.2d at 75; Linafelt v. Bev, Inc., 662 So.2d 986, 990 (Fla. 1st DCA 1995), that is not the case here.

For these reasons, we reverse the order on appeal and remand with instructions for the trial court to permit SIMED to proceed with its complaint, as well as to amend its claim of tortious interference to include an allegation of actual breach.

REVERSED and REMANDED.

WOLF, THOMAS, and ROWE, JJ., concur.


text:
    Howard A. CHEATHAM, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-5357.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2010.
    Rehearing Denied Dec. 15, 2010.
    Howard A. Cheatham, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, DAVIS, and WETHERELL, JJ., concur.