BRADLEY RANDAZZO, APPELLANT,
v.
ROBIN ACKERMAN FAYER, APPELLEE
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Bradley Randazzo appealed the dismissal of his defamation complaint against Robin Ackerman Fayer, who had testified against him in a murder trial decades earlier. The court reversed the dismissal, holding that absolute witness immunity cannot be established on the face of the complaint without showing that the allegedly defamatory statements were made in connection with an ongoing judicial proceeding.
Absolute immunity cannot be properly raised as a defense in a motion to dismiss unless its applicability is clearly apparent on the face of the complaint. Here, the complaint does not establish that Fayer's statements to the classification officer were made in the course of an ongoing judicial proceeding related to the subject matter of her prior testimony.
[1] An affirmative defense, such as absolute immunity, cannot be raised in a motion to dismiss if its applicability is not clearly apparent on the face of the complaint.
[2] Immunity is generally a fact-intensive issue that is not suitable for resolution through a motion to dismiss, except in exceptional circumstances where the facts supporti…
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Join FLexlaw to unlock all legal intelligence“Upon examining Appellant's complaint and taking all well-pled facts as true, we find that it was improper to raise the affirmative defense of absolute immunity in a motion to dismiss because its applicability is not 'clearly apparent on the face of the complaint.'”
Establishes the governing standard that immunity must be clearly apparent from the complaint to be raised in a motion to dismiss
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Join FLexlaw to unlock all legal intelligenceRandazzo filed a defamation complaint alleging that Fayer made a false phone call to his prison classification officer claiming he was writing extorti…
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Appellant, Bradley Randazzo, appeals a final order denying his “Motion to Strike and Motion for Default Judgment or Sanctions” and granting the “Motion to Dismiss — Witness Immunity” filed by Appel-lee, Robin Ackerman Fayer. Appellant raises two issues on appeal, only one of which merits discussion. He contends that the trial court erroneously granted Appel-*165lee’s motion to dismiss. We agree and therefore reverse as to the dismissal.
Appellant filed a “Civil Complaint For Slander False Accusation And Liable Or Defamation of Character” against Appel-lee, alleging in part that Appellee made a phone call to his prison classification officer and falsely and maliciously reported that Appellant was writing letters to her in an attempt to extort money. Appellant further alleged in his complaint that Ap-pellee was a material witness against him during his murder prosecution more than twenty years ago, at which proceeding she was granted immunity. Appellee filed a “Motion to Dismiss — Witness Immunity,” arguing that the suit was barred by the privilege of absolute immunity. Appellant filed a “Motion to Strike and Motion for Default Judgment or Sanctions.” The trial court denied Appellant’s motion to strike and motion for default judgment or sanctions and granted Appellee’s motion to dismiss. This appeal followed.
We review an order granting a motion to dismiss de novo. Fullerton v. Fla. Med. Ass’n, Inc., 938 So.2d 587, 590 (Fla. 1st DCA 2006). Upon examining Appellant’s complaint and taking all well-pled facts as true, we find that it was improper to raise the affirmative defense of absolute immunity in a motion to dismiss because its applicability is not “clearly apparent on the face of the complaint.” See Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004) (explaining that immunity is “a fact intensive issue” that may be raised in a motion to dismiss only in “exceptional cases in which the facts giving application to the defense are clearly apparent on the face of the complaint.”); Kirvin v. Clark, 396 So.2d 1203, 1204 (Fla. 1st DCA 1981) (concluding that even if absolute privilege applied, it was improper to raise the defense in a motion to dismiss because its applicability “[was] not disclosed by the allegations”). It is not clear from the four corners of Appellant’s complaint that the defense of absolute immunity applies to the allegedly defamatory statement Appel-lee made to Appellant’s classification officer regarding the letters she had received. Nor can we determine from the complaint that Appellee’s allegedly defamatory statement was made in the course of an ongoing judicial or quasi-judicial proceeding and was related to the subject of inquiry. See DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013); Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla.1992).
Accordingly, we affirm the denial of the “Motion to Strike and Motion for Default Judgment or Sanctions” and reverse as to the granting of the “Motion to Dismiss— Witness Immunity.”
AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.
LEWIS, C.J., BENTON and WETHERELL, JJ., concur.
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Fla. Carry, Inc. v. Univ. OF Fla., 180 So. 3d 137 (Fla. 1st DCA 2015)…d Beach, L.P., 760 So,2d 126, 130 (Fla.2000). Summary judgment is reviewed de novo.. Id. Statutory construction is a question of law also subject to de novo review. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla.2012); Randazzo, v. Fayer, 120 So. 3d 164, 165 (Fla. 1st DCA 2013). The Florida Supreme Court has instructed that “[w]here possible,- it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act.” K…
Authorities Cited
- Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992)
- Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013)
- Fariello v. Gavin, 873 So. 2d 1243 (Fla. 5th DCA 2004)
- Fullerton v. The Fla. Med. Ass'n, Inc., 938 So. 2d 587 (Fla. 1st DCA 2006)
- Kirvin v. Clark, 396 So. 2d 1203 (Fla. 1st DCA 1981)