Background
Okaloosa Properties Management, LLC owned property in Fort Walton Beach and retained attorney Joe Fixel to negotiate with FDOT over its proposed acquisition of the property. During those negotiations, a former business partner, Eliezer Tabib, sued Okaloosa’s owner, Dror Levy, in Miami-Dade Circuit Court over ownership of the property. Hoffman, Larin & Agnetti represented Tabib in that suit.
Okaloosa alleged that Agnetti called Fixel and persuaded him to treat Tabib, rather than Levy, as Okaloosa’s owner and to communicate only with Tabib about the FDOT negotiations. Fixel allegedly rejected an $889,000 FDOT settlement offer without telling Levy. Okaloosa later sued Agnetti for aiding and abetting breach of fiduciary duty, tortious interference, and conspiracy. The trial court dismissed the claims with prejudice under Florida’s absolute litigation privilege.
The Court’s Holding
The Third District reversed. Florida’s absolute litigation privilege applies only when the challenged act occurs during a judicial proceeding and bears some relation to that proceeding. Under DelMonico, conduct occurs during a judicial proceeding when it is before a judicial officer or appears in pleadings or documents filed with the court.
The complaint alleged phone calls between Agnetti and Fixel, not conduct before a judge or in court filings. The calls also preceded FDOT’s eminent-domain lawsuit by nearly a year. Although the Miami ownership litigation was pending when the calls allegedly occurred, that overlap alone did not establish that the calls occurred in the course of a judicial proceeding. Because the first requirement for absolute privilege was not met, the court did not reach whether the calls related to either lawsuit. It remanded for further proceedings.
Key Takeaways
- Out-of-court attorney phone calls are not automatically protected by Florida’s absolute litigation privilege.
- A pending lawsuit does not itself make every related communication an act occurring during a judicial proceeding.
- The court did not decide whether a qualified litigation privilege could apply because that issue was not raised or decided below.
Why It Matters
The decision reinforces the distinction between absolute protection for conduct in formal judicial settings and the more limited protection potentially available for out-of-court litigation-related communications. At the pleading stage, defendants invoking absolute litigation privilege must show that the alleged conduct occurred in the course of a judicial proceeding, not merely that litigation was pending or that the conduct concerned a litigated subject.