BOBBY KIRVIN, APPELLANT,
v.
CHARLES WATSON CLARK, APPELLEE
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Appellant Kirvin appealed the dismissal of his counterclaim for defamation against Appellee Clark. The court reversed the dismissal, finding that Kirvin's amended counterclaim alleged a viable cause of action for defamation per se based on allegations that Clark falsely told others that Kirvin threatened bodily harm.
The court held that Kirvin's amended counterclaim adequately alleged a cause of action for defamation per se. Even if Clark could assert an absolute privilege defense based on judicial proceedings, such privilege cannot be asserted on a motion to dismiss but must be pleaded as a defense.
[1] A counterclaim alleging that a party falsely published words imputing a crime to another may state a cause of action for defamation per se.
[2] Allegations of defamation per se must be sufficient to imply guilt of a criminal violation.
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Establishes the standard of review on a motion to dismiss and the court's conclusion that a defamation per se cause of action was stated
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Join FLexlaw to unlock all legal intelligenceAppellee Clark sued Appellant Kirvin for assault and battery. Kirvin filed an amended counterclaim alleging that Clark had falsely and repeatedly told…
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OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Appellee sued Appellant for damages, alleging that the latter had committed an assault and battery upon him. Appellant’s amended counterclaim, seeking damages for alleged defamatory remarks uttered by Ap-pellee, was dismissed with prejudice. It is from the order of dismissal that Appellant has taken this appeal.
Looking solely to the allegations of the amended counterclaim, and accepting as true all well pleaded facts as well as all reasonable inferences arising therefrom. Poulos v. Vordermeier, 327 So. 2d 245 (Fla. 4th DCA 1976), we conclude that the amended counterclaim alleges, perhaps marginally, a cause of action for defamation per se in that it alleges that Appellee falsely published of and concerning Appellant words imputing a crime to Appellant. See Campbell v. Jacksonville Kennel Club, Inc., 66 So. 2d 495 (Fla.1953).
The particular allegations which we believe sufficient to state a cause of action for defamation per se are quoted as follows:
“[Clark], on repeated occasions, has falsely told persons that [Kirvin] has threatened to do bodily harm or injury to [Clark] or his property and that such threats were made for the purpose of prohibiting and preventing [Clark] from asserting his rights and privileges against [Kirvin] in the courts ... of Franklin County.”
These words, if true, would imply that Kir-vin, by such conduct, was guilty of a violation of Section 836.05, Florida Statutes (1979), a felony of the second degree.
Appellee urges that the alleged defamatory words were absolutely privileged because published in the course of judicial proceedings. If the alleged defamatory words are indeed subject to an absolute privilege (a matter which we do not here need to decide), such privilege is not disclosed by the allegations of the amended counterclaim and therefore may not be asserted in a motion to dismiss, but rather must be pleaded as a defense.
The order dismissing the amended counterclaim is reversed. Upon remand, Appel-lee should be afforded reasonable opportunity to file such defenses thereto as he may be advised.
REVERSED AND REMANDED.
MILLS, C. J., concurs.
ROBERT P. SMITH, J., dissents, without opinion.
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Fariello v. Gavin, 873 So. 2d 1243 (Fla. 5th DCA 2004)…ment or trial. There may, however, be exceptional eases in which the facts giving application to the defense are clearly apparent on the face of the complaint, in which case the defense may be raised by motion to dismiss. See, e.g., Kirvin v. Clark, 396 So. 2d 1203 (Fla. 1st DCA 1981). The defense is analogous to a statute of limitations defense. A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is…
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Huszar v. Gross, 468 So. 2d 512 (Fla. 1st DCA 1985)…al court must accept as true all well pleaded facts as well as all reasonable inferences arising therefrom, it appears that the trial court was justified in concluding that Gross was acting in the course and scope of his employment. Kirvin v. Clark, 396 So. 2d 1203 (Fla. 1st DCA 1981). Further, as was stated in Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980), the Florida Supreme Court has adopted a broad definition of the phrase “scope of office.” It is Huszar’s contention that the neutral re…
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Authorities Cited
- Campbell v. Jacksonville Kennel Club, Inc., 66 So. 2d 495 (Fla. 1953)
- Poulos v. Vordermeier, 327 So. 2d 245 (Fla. 4th DCA 1976)