Opinion
Nos. 85-2301, 85-2302.
July 1, 1986. Rehearing August 12, 1986. Second Rehearing Denied September 12, 1986.
An Appeal from the Circuit Court of Dade County; Jack M. Turner, Judge.
Milton E. Grusmark, North Miami, for appellants.
Kimbrell Hamann and Matthew F. Minno, Blackwell, Walker, Fascell Hoehl and Todd A. Cowart, Miami, for appellees.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
The final order dismissing the complaint herein is reversed and the cause is remanded to the trial court for further proceedings. We reach this result based on the following briefly stated legal analysis.
First, the subject complaint stated, without dispute, a valid cause of action for libel. Second, the subject complaint does not plead, as urged, sufficient facts showing that the alleged defamatory statements were absolutely privileged because it is uncertain, based on the face of the complaint, whether the said defamatory statements — which appeared in a complaint filed in the United States District Court for the Eastern District of New York — were relevant to the prior proceeding, so as to trigger the aforesaid absolute judicial privilege. See Robertson v. Industrial Insurance Co., 75 So.2d 198, 199 (Fla. 1954); Sailboat Key, Inc. v. Gardner, 378 So.2d 47, 48 (Fla. 3d DCA 1979); Delacruz v. Peninsula State Bank, 221 So.2d 772, 776 (Fla. 2d DCA 1969); see also N.E. at West Palm Beach, Inc. v. Horowitz, 471 So.2d 570, 570-71 (Fla. 3d DCA 1985). Third, this reversal shall be without prejudice to the defendants' subsequent filing of a motion for judgment on the pleadings or motion for summary judgment, upon remand, if appropriate. See Cohen v. Trask, 471 So.2d 1294, 1295 (Fla. 3d DCA 1985), pet. for review denied, 482 So.2d 350 (Fla. 1986).
Reversed and remanded.
ON REHEARING
The defendant Harvey W. Spizz has filed a motion for rehearing in this cause. He quite properly points out that we neglected in our original opinion to address a second issue in this case, namely whether there were sufficient contacts to support personal jurisdiction over the defendant Harvey Spizz under Section 48.193, Florida Statutes (1985). The trial court below concluded that the activities of the defendant Spizz, a resident of New York state, did not sufficiently come within the purview of this statute to support personal jurisdiction over Spizz. We disagree. There are sufficient allegations in the complaint to establish that the defendant Spizz committed a tort in Florida in this case, to wit: a libel, to support personal jurisdiction over him under Section 48.193(1)(b), Florida Statutes (1985).
We, accordingly, grant Spizz's motion for rehearing, address the personal jurisdictional issue as to Spizz on rehearing, reverse the order dismissing the instant complaint for lack of personal jurisdiction over the defendant Harvey W. Spizz, and remand the cause to the trial court for further proceedings.
Rehearing granted; reversed and remanded.