Third District Court of Appeal
State of Florida
Opinion filed August 26, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D24-1502
Lower Tribunal No. 2024-002003-CA-01
Okaloosa Properties Management, LLC,
Appellant,
vs.
Hoffman, Larin & Agnetti, P.A., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge
Boyd Richards Parker & Colonnelli, P.L., and Marcus A. Nielsen, and Yvette R. Lavelle, for appellant.
Freeman Mathis & Gary, LLP, and Robert M. Klein and Christopher J. Fraga, for appellees.
Before FERNANDEZ, LOGUE, and GORDO, JJ.
LOGUE, J.
Okaloosa Properties Management, LLC (“Okaloosa LLC”) appeals a
final judgment dismissing with prejudice its claims against John Bradley
Agnetti and Hoffman, Larin & Agnetti, P.A. (collectively, “Agnetti”) for aiding
and abetting breach of fiduciary duty, tortious interference, and conspiracy.
It alleged that Agnetti, while representing a third party claiming an interest in
certain property owned by Okaloosa LLC, persuaded Okaloosa LLC’s
eminent domain attorney to treat the third party as Okaloosa LLC’s owner.
This allegedly caused Okaloosa LLC to lose a favorable settlement in certain
eminent domain negotiations. On appeal, Okaloosa LLC raises several
arguments, but only one merits discussion: whether Florida’s litigation
privilege provides absolute immunity for Agnetti’s alleged conduct. Because
the facts alleged in Okaloosa LLC’s operative complaint failed to show that
Agnetti’s alleged acts occurred in the course of a judicial proceeding, we
conclude the trial court erred in applying the absolute litigation privilege at
this stage and reverse and remand for further proceedings.
BACKGROUND
The following statement of facts is taken from the allegations in the
operative complaint. This case arises out of a dispute over property located
in Fort Walton Beach, Florida (the “Property”). Since 2010, Okaloosa LLC
has owned the Property. In May 2017, after learning the Florida Department
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of Transportation (“FDOT”) intended to acquire the Property through eminent
domain, Okaloosa LLC retained Joe Fixel and the Fixel Law Firm
(collectively, “Fixel”) to represent it in negotiations with FDOT. Fixel initially
kept Okaloosa LLC’s owner, Dror Levy, informed about the negotiations with
FDOT. But, as explained below, Agnetti ultimately persuaded Fixel to stop
informing and consulting Levy about the negotiations, which led to the lawsuit
at issue.
Allegations Regarding Miami Litigation
While the negotiations were ongoing, a separate case related to the
Property began. In January 2021, Levy’s former business partner Eliezer
Tabib and Levy’s former employer Marco Destin, Inc. (collectively, “Tabib”)
sued Levy in the Circuit Court for the Eleventh Judicial Circuit of Florida over
the ownership of the Property (the “Miami Litigation”). Tabib alleged Levy
took money from him to purchase the Property, then collected rent on the
Property without paying Tabib. Agnetti represented Tabib in that action.
At the outset of the Miami Litigation, Agnetti made telephone calls to
Fixel which are at issue in this case. Significantly, Agnetti and Fixel were not
opposing counsel in the same case. Fixel represented Okaloosa LLC in the
negotiations with FDOT over acquisition of the Property and Agnetti
represented Tabib in the Miami Litigation. During their phone calls, Agnetti
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persuaded Fixel to (1) treat Tabib as the owner of Okaloosa LLC; and (2)
consult only Tabib and not Levy regarding the negotiations with FDOT. As a
result, Fixel began to treat Tabib as the owner of Okaloosa LLC and provided
Tabib with updates regarding the FDOT negotiations instead of Levy,
Okaloosa LLC’s actual owner.
Allegations Regarding Eminent Domain Litigation
In February 2021, FDOT communicated a settlement offer of $889,000
for the Property to Fixel. On March 15, 2021, Fixel sent Tabib a letter
informing him of that offer. In that letter, Fixel referred to Tabib as the
president of Okaloosa LLC. Fixel then rejected FDOT’s settlement offer
without communicating the offer to Levy. As a result, on December 15, 2021,
a second case related to the Property began—FDOT sued Okaloosa LLC to
take the Property (the “Eminent Domain Litigation”).
In February 2022, Tabib’s attorney, Carlos Nunez, who served as
Agnetti’s co-counsel in the Miami Litigation, directed Fixel to inform Okaloosa
LLC of the state of the Eminent Domain Litigation. Fixel then informed
Okaloosa LLC, through Levy, of his rejection of the settlement offer, the
initiation of the Eminent Domain Litigation, his treatment of Tabib as the
owner of Okaloosa LLC, and his communications with Agnetti.
Subsequently, on March 14, 2022, Fixel withdrew as counsel for Okaloosa
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LLC in the Eminent Domain Litigation. Although Tabib filed a crossclaim and
third-party complaint in the Eminent Domain Litigation, Agnetti did not
represent Tabib in that case. As in the Miami Litigation, Tabib contested only
the ownership of the Property—not the ownership of Okaloosa LLC.
Proceedings Below
Consequently, Okaloosa LLC filed the underlying action in February
2024 against Agnetti, asserting claims of aiding and abetting breach of
fiduciary duty, tortious interference, and conspiracy. Okaloosa LLC based
these claims on Agnetti’s instructions (as Tabib’s lawyer) to Fixel to treat
Tabib instead of Levy as the owner of Okaloosa LLC and to freeze Levy out
of the negotiations with FDOT over its efforts to obtain the Property.
Okaloosa LLC’s complaint included references to the Miami Litigation
(between Tabib and Levy over ownership of the Property) and the Eminent
Domain Litigation (between FDOT and Okaloosa LLC over acquisition of the
Property with Tabib named as having a possible interest), including the case
name and number of both. Okaloosa LLC included those cases to
demonstrate that no party contested Okaloosa LLC’s ownership, only the
ownership of the Property.
After Okaloosa LLC filed its first amended complaint, Agnetti moved to
dismiss, arguing Florida’s absolute litigation privilege barred Okaloosa LLC’s
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three claims because Agnetti’s phone calls with Fixel occurred during the
Miami Litigation and the Eminent Domain Litigation. The trial court granted
Agnetti’s motion and dismissed the first amended complaint with prejudice.
It reasoned that Agnetti’s phone calls with Fixel had some relation to the
Miami Litigation or the Eminent Domain Litigation and occurred during the
course of one or both of those proceedings. Okaloosa LLC then filed a
motion for rehearing, which the trial court denied. This appeal followed.
ANALYSIS
I. Standard of Review
An order granting a motion to dismiss is reviewed de novo. Pacheco v.
Waldo Acebo, M.D., P.A., 406 So. 3d 319, 321 (Fla. 3d DCA 2025).
II. Absolute Litigation Privilege
Florida’s litigation privilege provides absolute immunity for any act that
(1) occurs during the course of a judicial proceeding; and (2) has some
relation to that proceeding. Levin, Middlebrooks, Mabie, Thomas, Mayes &
Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). Absolute
privilege applies when these two requirements are met because “[i]n these
more formalized judicial settings, the presence of safeguards facilitates and
promotes an unimpeded speaking environment while protecting an individual
from false or malicious statements[.]” DelMonico v. Traynor, 116 So. 3d
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1205, 1217 (Fla. 2013), abrogated on other grounds by Askew v. Fla. Dep’t
of Child. & Fams., 385 So. 3d 1034, 1036 n.2 (Fla. 2024); see also Arko
Plumbing Corp. v. Rudd, 230 So. 3d 520, 524 (Fla. 3d DCA 2017) (holding
neither absolute nor qualified privilege applied to attorney accessing
opposing party’s company account and only qualified privilege applied to
examination under oath outside formal discovery process). Additionally, the
privilege can apply “in all causes of action, statutory as well as common law.”
Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380,
380–81 (Fla. 2007).
For an act to occur “in the course of a judicial proceeding,” it must be
“in front of a judicial officer or in pleadings or documents filed with the court.”
DelMonico, 116 So. 3d at 1217. In a judicial setting, the court can mitigate
potential harm by “expunging [or striking] irrelevant defamatory matter from
the pleadings, and by punishing for contempt of court the guilty party.” Id.
Because these remedies do not exist for conduct outside of a judicial
proceeding, only a qualified privilege applies when “an attorney steps outside
of both the courtroom and the formal discovery process to investigate a
claim.” Id. at 1218.1
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In contrast to the absolute privilege, Florida’s qualified litigation privilege applies to ex-parte, out-of-court statements, so long as they bear some relation to the underlying lawsuit. DelMonico, 116 So. 3d at 1208. To
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Agnetti argues DelMonico applies only to defamation cases; however,
DelMonico also involved a tortious interference claim. 116 So. 3d at 1209.
Courts continue to apply the DelMonico standard to non-defamation causes
of action. See KAC 2021-1, LLC v. Am. Homes 4 Rent Props. One, LLC, 398
So. 3d 1033, 1037 (Fla. 2d DCA 2024); Arko Plumbing Corp., 230 So. 3d at
524. Alternatively, Agnetti argues that because Askew abrogated DelMonico
on jurisdictional grounds, DelMonico’s standard does not apply. But courts
continue to apply that standard while recognizing Askew abrogated
DelMonico on other grounds. See Grippa v. Rubin, 133 F.4th 1186, 1194
(11th Cir. 2025).
Here, the allegations of Okaloosa LLC’s amended complaint do not
demonstrate a basis for the application of Florida’s absolute litigation
privilege. This is because the allegation that Agnetti (as Tabib’s lawyer in the
Miami Litigation) made phone calls to Fixel (as Okaloosa LLC’s lawyer in the
eminent domain negotiation prior to suit) instructing Fixel to treat Tabib rather
overcome this qualified privilege, the plaintiff must establish express malice. Id. But, “where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit,” the defendant is not entitled to either privilege. Id. Because the qualified litigation privilege was not raised below or ruled upon by the trial court, we do not reach that issue. Rosich-Medina v. Chilaud, 426 So. 3d 578, 583 (Fla. 3d DCA 2025) (“As an appellate court, we are constrained from making these determinations in the first instance.”).
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than Levy as the owner of Okaloosa LLC does not demonstrate that the
alleged acts occurred during the course of a judicial proceeding. The
amended complaint alleges that the phone calls occurred in January 2021,
and FDOT did not file the Eminent Domain Litigation until December 15,
2021.
Furthermore, while the amended complaint does reflect that the Miami
Litigation overlapped with Agnetti’s phone calls with Fixel—both occurred in
January 2021—these allegations are still insufficient to establish that the
absolute litigation privilege applies. This follows from the alleged acts
themselves—phone calls, which by their nature would not have occurred “in
front of a judicial officer or in pleadings or documents filed with the court.”
DelMonico, 116 So. 3d at 1217. As a result, a trial court would have no
opportunity to mitigate potential harm resulting from such alleged
communications because it could not strike the information because it was
not filed with the court and it could not use its contempt power because the
phone calls did not occur before the court. Id. Therefore, the allegations of
Okaloosa LLC’s amended complaint regarding Agnetti’s phone calls with
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Fixel do not reflect that the alleged acts occurred during the course of a
judicial proceeding.2
The order on appeal cites Cherdak v. Cottone, No. 2:22-cv-634-SPCNPM, 2023 WL 2044608, at *4 (M.D. Fla. Feb. 16, 2023), to show the
absolute privilege applies in this case; however, the materials protected by
the absolute privilege in Cherdak were affidavits to be filed with the court.
Therefore, the remedies listed in DelMonico—expunging or striking
defamatory matter from the pleadings and punishing for contempt of court
the guilty party—were available in Cherdak. DelMonico, 116 So. 3d at 1217.
Here, the alleged phone calls were not before a judicial officer or filed with
the court, and therefore, none of these remedies were available. Id. Because
the alleged phone calls did not occur in the course of a judicial proceeding,
it is unnecessary to consider the second part of the test—whether the
conduct had some relation to the proceeding.
Accordingly, because the allegations of Okaloosa LLC’s amended
complaint failed to show that the alleged acts occurred in the course of a
2
Agnetti, as well as the trial court in the order on appeal, cites several federal cases applying Florida law to demonstrate the absolute privilege applies to the phone calls; however, almost all were either decided before DelMonico or did not apply DelMonico. As a result, these courts did not apply the controlling standard DelMonico created to determine whether conduct occurred in the course of a judicial proceeding. See DelMonico, 116 So. 3d at 1217–18.
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judicial proceeding, the trial court erred in concluding that the absolute
litigation privilege applied. We therefore reverse the trial court’s order of
dismissal and remand for further proceedings.
Reversed and remanded.
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