4th DCA (Melanie Bell)
Ten years after it began, the Fourth District Court of Appeal brought a Miami attorney’s defamation case to a close, ruling his opponent could not overcome a qualified privilege defense.
John Atkinson of Atkinson & Brownell became embroiled in a Palm Beach Circuit lawsuit with Paul Pomfret, a business associate whom Atkinson sued for $2 million in a deal gone bad.
Pomfret’s counterclaim involved a defamation allegation after Atkinson allegedly told a third party that Pomfret was a “crook.”
Atkinson won at trial on every issue and Pomfret appealed. In 2011, the Fourth District upheld Circuit Judge Thomas Barkdull III’s final judgment, ruling in part that Atkinson had absolute immunity because the third-party conversation involved an attorney interviewing a potential witness.
However, Pomfret appealed to the Florida Supreme Court and the high court quashed the Fourth District’s decision in part, basing its position on Delmonico v. Traynor, a 2013 case where the Supreme Court found absolute privilege was not intended to “sweep so broadly as to provide immunity from liability” from defamatory statements made during ex-parte, out-of-court conversations of potential or nonparty witnesses.
This still left Atkinson with a qualified privilege defense. To overcome that, Pomfret had to show Atkinson acted with express malice.
“Pomfret did not show that Adkinson was motivated primarily by a desire to harm Pomfret’s reputation, as opposed to being motivated by the legitimate purpose of warning Cannavo to get his money back from Pomfret,” Fourth District Judge Carole Taylor wrote.
Judges Cory Ciklin and Alan O. Forst concurred.