Okaloosa Properties Management, LLC v. Hoffman, Larkin & Agnetti, P.A.

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 26, 2026.

Not final until disposition of timely filed motion for rehearing.

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No. 3D24-1502

Lower Tribunal No. 2024-002003-CA-01

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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

1 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-SPC-

NPM, 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.