NOTICE:  THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL

UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE

REVIEW AND, IF FILED, DETERMINED

 

County Civil Court:  STANDARD OF REVIEW – non-jury trial – defamation - trial court’s findings are clothed with a presumption of correctness and these findings will not be disturbed unless clearly erroneous – Appellant unable to demonstrate findings are clearly erroneous and judgment is supported by competent substantial evidence – courts will not re-try cases on appeal – statements in petition for injunction were privileged and could not support defamation claim – Final Judgment affirmed.  Alexeev v. Johnson, Appeal No. 07-0015AP-88A (Fla. 6th Cir. App. Ct. Oct. 16, 2007). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

KAREN ALEXEEV,

                        Appellant,

vs.                                                                                    Appeal No. 07-0015AP-88A

                                                                                        UCN522007AP000015XXXXCV

 

WENDY CRANE JOHNSON,

                        Appellee.

______________________________________/

Appeal from Pinellas County Court

 

Karen Alexeev

Appellant, pro se

 

Patricia Fields Anderson, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Karen Alexeev (Alexeev), from the Final Judgment for Defendant, entered March 2, 2007, in favor of Wendy Crane Johnson (Johnson).  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

On December 12, 2006, Alexeev filed a Statement of Claim against Johnson seeking damages for defamation, abuse of process, and malicious prosecution as a result of Johnson filing a Petition for Injunction for Protection Against Repeat Violence against Alexeev in a separate case.[1]  The record shows that Johnson owns Motion Sports Management, a company that stages local running races.  Alexeev, an ardent runner, and Johnson had several negative encounters at races which resulted in Johnson filing the Petition for Injunction, for the primary purpose of keeping Alexeev from participating in running events organized by Johnson’s company.  Johnson testified that she has a genuine fear of Alexeev.

            At the conclusion of the non-jury trial, the trial court entered Final Judgment for Defendant.  The trial court found that:  “Although Defendant’s assertions in support of a requested Injunction for Protection Against Repeat Violence were legally insufficient, the allegations, nonetheless, were true.”  The trial court concluded that Johnson did not abuse process of law, nor maliciously prosecute Alexeev.  The trial court also found that Alexeev failed to prove her defamation claim. 

Alexeev argues that the trial court erred in granting Final Judgment in favor of Johnson.  In reviewing Alexeev’s arguments, this Court must determine if the Final Judgment is supported by competent substantial evidence.  See  Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976).  “When a case is tried without a jury, the trial judge’s findings are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.”  See Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005); see also Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(same).

            The Court finds that Johnson is not able to overcome the presumption of correctness afforded the trial court’s ruling and the Final Judgment is supported by competent substantial evidence.  Johnson is essentially rearguing her case before this Court.  However, appellate courts will not retry cases on appeal.  See Urban v. City of Dayton Beach, 101 So.2d 414, 417 (Fla. 1st DCA 1958). 

            Further, as pointed out by the trial court, the allegations made by Johnson in her Petition for Injunction, around which Alexeev’s case was centered, are privileged.  See Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla. 1992).  As stressed by the Florida Supreme Court in Fridovich:

The law in Florida has long been that defamatory statements made in the course of judicial proceedings are absolutely privileged, and no cause of action for damages will lie, regardless of how false or malicious the statements may be, so long as the statements are relevant to the subject inquiry.  Id.

 

Hence, even if it could be said that Johnson’s statements in her Petition for Injunction were patently false, Alexeev could not maintain a cause of action for defamation.

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment for Defendant is affirmed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of October 2007.

 

 

                                                     ________________________________

                                                     R. TIMOTHY PETERS

                                                     Circuit Judge, Appellate Division

 

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

 

Copies furnished to:

 

Honorable Walt Fullerton

County Court Judge

 

Karen Alexeev

2630 – 48th Street South

Gulfport, FL  33711

 

Patricia Fields Anderson, Esquire

7116 Gulf Blvd., Suite D

St. Pete Beach, FL  33706


[1] The trial court declined to enter a temporary injunction and the Petition was later dismissed when Johnson failed to appear for the scheduled return hearing.