Third District Court of Appeal
                               State of Florida

                          Opinion filed January 24, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-388
                          Lower Tribunal No. 15-3240
                             ________________


                Two Islands Development Corp., et al.,
                                   Appellants,

                                        vs.

                           David L. Clarke, et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley,
Judge.

      Waldman Barnett, Glen H. Waldman, Eleanor T. Barnett and Michael A.
Azre, for appellants.

       Kubicki Draper, Caryn L. Bellus and Barbara E. Fox; Conroy Simberg
Gannon Krevans Abel Lurvey Morrow & Kraft, Hinda Klein, and Dale Friedman;
Wicker Smith O'Hara McCoy & Ford, Alyssa M. Reiter and Lindsey A. Hicks;
Coffey Burlington and Susan E. Raffanello; Boyd Richards Parker & Colonnelli,
James K. Parker and Craig J. Shankman; Cole Scott & Kissane, Scott A. Cole and
Lissette Gonzalez; Egozi & Bennett, Bernard L. Egozi and Isaac S. Lew; The
Arthur Firm and Arthur J. Jones, for appellees.
      Before SUAREZ, EMAS and LOGUE, JJ.

      EMAS, J.

      INTRODUCTION

       Appellants, the plaintiffs below, appeal the trial court’s final order

dismissing, with prejudice, all counts against all defendants.

      For the reasons that follow, we reverse the trial court’s order dismissing with

prejudice all counts against the Williams Island Defendants, as plaintiffs had

already voluntarily dismissed those defendants prior to the trial court’s entry of a

written order of dismissal. We also reverse the trial court’s order dismissing with

prejudice Count IV against individual South Island defendants Feder, Sawicki,

Kleiman and Coba.

      Finally, we affirm the trial court’s order dismissing with prejudice counts I,

II and III against the South Island Defendants, and dismissing with prejudice Count

V against South Island defendant Feder.

      RELEVANT FACTS AND PROCEDURAL BACKGROUND

      The Parties

      This appeal concerns three islands located in Aventura, Florida—Williams

Island, the North Island, and the South Island, and associated groups of appellees,

who are the defendants below:




                                          2
       Williams Island is the westernmost island with a singular road and bridge

connecting it to the South Island. That same road connects the South Island by

bridge to the North Island. Williams Island consists of residential homes and the

owners of these residential homes are referred to in the instant case as the

“Williams Island Defendants.” By virtue of their ownership of homes on Williams

Island, they are members of the Williams Island Property Owners’ Association (the

“WIPOA”).

       The South Island consists of single family residential homes known as

“Island Estates.” The owners of these residential homes are referred to as the

“South Island Defendants.” By virtue of their ownership of homes on the South

Island, they are members of the Island Estates Homeowners’ Association (the

“IEHOA”).

       The dispute giving rise to this appeal, however, surrounds the development,

construction, marketing and sale of a sixteen-story, two-tower building of

condominiums on the North Island known as Príve at Island Estates. The South

Island and the North Island will be referred to collectively as “the Two Islands.”

       The appellants/plaintiffs below consist of the following:

   -   Gary Cohen, in his individual capacity, owns a home on the South Island.
       Cohen is also successor Trustee of Trust No. 75-LT-21 (the “Trust”) which
       is the owner of the North Island. Cohen controls Two Islands Development,
       NI Holdings and Last Lot.



                                          3
    -   Two Islands Development Corp. is the developer of the South Island.

    - NI Holdings, LLC owns submerged land adjacent to the islands.

    -   Last Lot Corp. owns the sole remaining undeveloped lot on the South Island.

    - Príve Developers, LLC (“Príve Developers”), is the developer currently
      developing Príve at Island Estates on the North Island.

    - BH3 Realty, LLC is in charge of the marketing and selling of the
      condominiums currently under development.

        The Allegations

        Appellants’ Amended Complaint includes the following allegations:

        In 1976, the Cohen family secured a final judgment in Miami-Dade County

Circuit Court, which granted the Cohen family certain rights related to the

development of the Two Islands and compelled Miami-Dade County to rezone

them according to certain stated limitations in the judgment. In 2006, the City of

Aventura executed and recorded a “Vested Rights Determination Agreement” that

reaffirmed the extent of the vested rights for the Two Islands.1

        Cohen has served as president of the IEHOA since its inception. In 2011,

residents of the South Island expressed an interest in having access to the


1This agreement stated that the permitted density for any development is seventeen
units per acre and cannot exceed a maximum height of 290 feet. Both islands
encompass a total of twenty-four acres, allowing for a total of 408 units for the
Two Islands. There remains a permissible density of 386 units after subtracting the
twenty-two homes built on the South Island. The Príve at Island Estates project
consists of 160 total units between two towers with a height of 201 feet.

                                          4
anticipated amenities that would be included in the development on the North

Island.     In January 2013, after consulting with counsel, Cohen prepared and

presented a plan to the other homeowners of the South Island for their

consideration of a Shared Maintenance Association. The plan was emailed to the

homeowners with a notice of an upcoming meeting where the plan would be

subject to a vote.     Also included in the email were details of the planned

development on the North Island and a draft of the Easement, Operating and

Development Agreement (the “EODA”), which agreement was necessary for

creating the Shared Maintenance Association.

      The meeting for the vote on the Shared Maintenance Association was

initially scheduled for February 21, 2013, but some homeowners expressed that

they needed more time to consider the plan and materials submitted. At their

request, Cohen continued the meeting and the vote to February 28, 2013. At the

February 28 meeting, the Shared Maintenance Association and plans contained

therein were approved by a vote of 11-0, with the balance of the eligible

homeowners electing to exercise their right not to vote. Pursuant to the vote, on

March 7, 2013, Cohen—in his capacity as president of the IEHOA, the trustee of

the Trust, and president of Two Islands Development—executed the EODA.

Relevant to this appeal, the EODA (attached as an exhibit to the complaint)

provides:



                                        5
      D. Two Islands, Association and Trust, and their respective successors
      (each a “Party” and collectively, the “Parties”) desire to grant, re-
      grant or re-affirm, as applicable, easements (each an “Easement
      Area” and collectively the “Easement Areas”) over certain portions
      of the North Island and the South Island, for the mutual benefit of the
      Parties, as well as for the benefit of the owners (each a “Parcel
      Owner” and collectively, the “Parcel Owners”) of the individual
      single-family homes (“Dwellings”) and/or condominium units
      (“Units”) now or hereafter located within the South Island or the
      North Island (collectively, the “Properties”), including (without
      limitation), easements from Two Islands and the [IEHOA] which are
      being granted pursuant to Section 1(d) of Article IV of the Island
      Estates Declaration.

The EODA contains the following covenants at issue:

      13. Covenants of Further Assurances. From time to time, at the
      request of any of the Parties or Associations, the other Parties or
      Associations shall, without further consideration, promptly agree to
      execute and deliver any and all other instruments which may be
      reasonably arising hereunder, including but not limited to any
      additional easements and other instruments required for the location,
      installation, construction, maintenance, repair and/or replacement of
      any and all facilities for water, sewer, electric, other public utilities
      and surface water management relating to all or any portion of the
      Properties, and any and all governmental applications, permits,
      approvals and covenants required in connection with the development,
      maintenance and operation of any portion of the Properties.

      15. Reservation of Development and Other Rights; Ratification of
      Easements. . . . The Associations each agree, on their own behalf and
      on behalf of their respective members, to execute any joinders,
      consents, applications, permits, easements, unity of title, declaration
      or covenant running with the land in lieu of unity of title, or other
      documents which may be necessary or desirable to obtain or transfer
      any governmental approvals in connection therewith, and to otherwise
      fully utilize, enjoy or transfer the Development Rights. . . . The Parties
      hereto ratify and reaffirm the easements set forth in the Island Estates
      Declaration and all easements or rights of record affecting the South



                                          6
      Island as of the date of this Agreement, as recorded in the Public
      Records of Miami-Dade County.

      17. Covenants Running with the Land. The easements hereby
      granted, the restrictions hereby imposed, and the agreements herein
      contained shall be easements, restrictions and covenants running with
      the land and shall inure to the benefit of and be binding upon the
      Associations, the Marina Slip Holders and the Parties hereto, and their
      respective heirs, successors and assigns, including, but without
      limitation, all subsequent owners of portions of the Properties and all
      persons claiming under them.

      Appellants alleged that, in reliance in part on the EODA, Príve Developers

proceeded with the development of the Príve at Island Estates on the North Island.

Also in reliance in part on the EODA, Príve Developers took steps toward

preselling condominium units. As of the filing of the Amended Complaint, 79 of

the 160 units had been sold with approximately $222 million in sales under

contract with a total amount of approximately $63 million being held in escrow for

the purchasers who were originally told to expect delivery of their units by the first

quarter of 2016, but now will not take possession until the second quarter of 2017.

      Appellants also alleged that the Williams Island Defendants purchased their

properties subject to the vested rights to build high-rise condominium buildings on

the North Island and subject to express contracts recorded in the public records and

included in their title policies, including one titled “Agreement Not to Object,”

which prohibits the Williams Island Defendants from objecting to development on

the North Island, and requires their cooperation if needed.



                                          7
       Appellants alleged that, despite having agreed to the EODA and the

Agreement Not to Object, the South Island Defendants and the Williams Island

Defendants breached their obligations and have taken steps to protest or otherwise

interfere with the development of the North Island. Specifically, this lawsuit is the

fifth in a series of cases in the trial court arising from the development of the North

Island, which includes:

    1. Clarke, et al. v. Two Islands Dev. Corp., et al., lower court case number 14-
       21513 (the “Trespass Action”).2

    2. Island Estates Homeowners Ass’n, Inc. v. Two Islands Dev. Corp., Gary
       Cohen as Trustee of Trust No. 75-LT-21, and NI Holdings, LLC, lower
       court case number 13-35005 (the “IEHOA Action”).

    3. Príve Dev., LLC v. City of Aventura, lower court case number 15-000898.

    4. Williams Island Prop. Owners Ass’n Inc. v. City of Aventura, lower court
       case number 13-015004 (the “Vested Rights Action”).3



2  In the Trespass Action, the South Island Defendants sought a temporary
injunction to challenge the construction of a sidewalk along the outer boundaries of
the South Island Defendants’ properties. The trial court granted the temporary
injunction and also denied Two Islands’ motion for the Trust and Príve Developers
to intervene in the underlying proceedings. Two Islands appealed. This Court
vacated the temporary injunction finding that it directly interfered with the rights
of parties who were not before the trial court, and who were specifically not
permitted to intervene. Two Islands Dev. Corp. v. Clarke, 

, 1084
(Fla. 3d DCA 2015). This Court also found that the temporary injunction delayed
the Trust’s and Príve Developers’ receipt of a building permit for the development
of the Príve at Island Estates on the North Island. 

case number 15-000898, the WIPOA seeks a declaratory judgment regarding
the vested rights of appellants to build on the North Island.

                                          8
       Appellants allege that by failing to abide by their agreements and choosing

instead to protest the development of Príve at Island Estates by instituting lawsuits,

lobbying city officials, and interfering in and preventing a settlement of the Vested

Rights Action, appellees improperly caused significant delays to the project. Príve

Developers alleges that, as a result of these lawsuits and protests, appellants

incurred unnecessary expenses and lost sales due to potential buyers’ concerns

about the pace of the construction and the uncertainty of ongoing litigation.

Appellants also allege that these unforeseen delays caused by appellees’ breaches

have damaged Príve Developers’ reputation.

       The Causes of Action

       Accordingly, appellants filed their original complaint (and an amended

complaint) seeking $30,000,000 in alleged damages from appellees. The Amended

Complaint contains the following claims:

     Count I: Breach of covenant against the South Island Defendants;

     Count II: Specific performance of covenant against the South Island
      Defendants;

     Count III: Breach of the duty of good faith and fair dealing against the
      South Island Defendants;

     Count IV: Slander of title against individual South Island defendants Feder,
      Sawicki, Kleiman and Coba;4


4Count IV was filed only on behalf of appellant/plaintiff Gary Cohen, as Trustee
of the Trust and owner of the North Island.

                                          9
    Count V: Tortious interference with settlement agreement against Feder
     and the Williams Island Defendants.

      In response, all appellees filed motions to dismiss the Amended Complaint

and adopted various arguments advanced in the motions to dismiss filed by other

appellees. Appellants filed an omnibus response to the motions to dismiss.

      On December 3, 2015, the day before the hearing scheduled on the motions

to dismiss, the Williams Island Defendants filed a joint notice to defer the hearing

on their motions to dismiss the Amended Complaint, but the trial court went ahead

with the hearing the next day. At the conclusion of the hearing, the trial court

found the following:

            The Court has had an opportunity to review all of the
            defendants’ motion to dismiss. And I reviewed the response, as
            well, of the plaintiff, the omnibus response. I have looked at the
            amended complaint. Also I’ve looked at the [the EODA], which
            we all know is operative as far as some critical issues in this
            case.

            At this time the Court grants the motion to dismiss.

            First I’m going to refer to [the EODA] . . . .

            I have actually looked at, during the course of this argument,
            [the EODA] and the three operative pages that has only Mr.
            Gary Cohen’s signature I find cannot bind or bound the
            defendants, the individual defendants to this contract.

            It’s for that reason – one of the reasons why I dismissed this
            case against these individual defendants, because they did not
            enter this contract, they are not, as the Court finds, a party to
            this contract and cannot be legally obligated to abide by it.



                                         10
             I do also find, based on this Court’s familiarity with this case,
             that the litigation privilege and the anti-SLAPP privilege
             applies in this case.

             So all counts are dismissed . . . with prejudice.

      On December 23, 2015, after the trial court’s oral ruling, but before the final

order of dismissal was entered, appellants filed a notice of voluntary dismissal of

the Amended Complaint without prejudice as to the Williams Island Defendants.

      On January 13, 2016, the trial court entered its written final order of

dismissal. The order provides that the trial court reviewed “all of the motions to

dismiss and joinders filed by all the Defendants (including the Williams Island

Defendants)” and that the court finds “that none of the Defendants signed [the

EODA]” and because of that “they are not parties to it, they are not bound by it,

and they have no legal obligations under it.” The order further states “that the

litigation privilege and anti-SLAPP statute (§ 720.304, Fla. Stat. (2015)) apply to

the claims asserted in the Amended Complaint.” The order concluded that the case

is dismissed “in its entirety with prejudice as to all Defendants.” (Emphasis added.)

      This appeal follows.

      ANALYSIS

      This Court reviews de novo the trial court’s final order dismissing

appellants’ Amended Complaint with prejudice, Schilling v. Herrera, 

, 1234 (Fla. 3d DCA 2007), and the well-pleaded allegations in the complaint



                                          11
must be accepted as true for the purposes of a motion to dismiss and for our review

of the trial court’s order of dismissal. Morin v. Fla. Power & Light, 

, 260 (Fla. 3d DCA 2007).

      1. Whether the trial court erred in entering its written order dismissing
      the amended complaint as to the Williams Island Defendants, where
      appellants had already voluntarily dismissed those defendants as parties
      to the action.

      A hearing was scheduled for December 4, 2015 on all motions to dismiss

filed by all appellees.    However, the day before that scheduled hearing, the

Williams Island Defendants filed a joint notice of deferral of hearing on their

motions to dismiss. The deferral was raised at the beginning of the hearing by an

attorney for one of the appellees:

      Your Honor, one further thing. After we met yesterday there have
      been developments between the plaintiff and the Williams Island
      defendants, who include the gentlemen that you just named, Fels,
      Shelley, Josephs, Shanker and White.

      We have requested and we filed late – I apologize for the timing of it,
      but it is when we learned – filed late yesterday afternoon a request to
      defer the motion as it relates to the Williams Island defendants.

      Plaintiff is agreeable. As a matter of fact, they met directly before we
      even became involved.

      During the hearing, a second counsel for one of the appellees stated:

      We’re here today on behalf of – and I want to get the names right for
      purposes of making this argument – Rubin Salant Revocable Trust
      under Agreement dated October 20, 2009; Mr. and Mrs. Odulate and
      Todd Schwartz as trustee of Trust Seven Hundred Thirty.



                                        12
      We’re not here today on behalf of two other defendants we represent
      for the reasons you heard about deferral.

      (Emphasis added.)

      During appellants’ argument in opposition to the pending motions to

dismiss, counsel for appellants stated:

      And the last [claim] is tortious interference. And with regard to the
      tortious interference, the only defendant that that’s applicable to today
      would be Mr. Feder because the other defendants would be the
      WIPOA – it’s an acronym – who we’ve agreed for purposes of today
      we’re not going to proceed forward with.

      Thus both sides had agreed that the Williams Island Defendants’ motions to

dismiss were being deferred and would not be considered or ruled upon that day; in

fact the trial court was not presented with argument specifically addressing the

motion to dismiss filed by those defendants.5

      At the conclusion of the December 4th hearing, the trial court granted the

motion to dismiss and orally pronounced that “all counts are dismissed . . . with

prejudice.” The trial court’s oral pronouncement did not directly address whether

this ruling applied to the Williams Island Defendants.

      On December 23, before the trial court entered a written order of dismissal,

appellants filed a notice of voluntary dismissal without prejudice of the Williams

5In fairness to the trial court, however, the appellees/defendants had filed motions
adopting portions of each other’s motions to dismiss, and appellants and appellees
had agreed that a single attorney would present arguments on behalf of all
plaintiffs and a single attorney would present arguments on behalf of all
defendants.

                                          13
Island Defendants. On January 13, 2016, the trial court entered a written order of

dismissal, stating that the case is dismissed “in its entirety with prejudice as to all

Defendants.”

      On January 27, 2016, appellants filed a motion to vacate the January 13,

2016 order, arguing that the dismissal with prejudice of the Williams Island

Defendants was improper because, among other things, appellants had filed a

voluntary dismissal of those parties prior to rendition of the final order. That

motion was never heard by the trial court and was subsequently withdrawn by

appellants.

      Appellants contend, under these circumstances, the trial court was without

authority to enter its final order of dismissal as to the Williams Island Defendants.

We agree.

      Florida Rule of Civil Procedure 1.250(b) provides that “parties may be

dropped by an adverse party in the manner provided for voluntary dismissal in rule

1.420(a)(1) subject to the exception stated in the rule.” Thus, a plaintiff has a right

to take a voluntary dismissal against less than all defendants in an action.

Gonzalez v. Turner, 

, 1124 (Fla. 3d DCA 1983). The method for

doing so is provided in Florida Rule of Civil Procedure 1.420(a)(1):

      (a) Voluntary Dismissal.
      (1) By Parties. Except in actions in which property has been seized or
      is in the custody of the court, an action, a claim, or any part of an
      action or claim may be dismissed by plaintiff without order of court


                                          14
      (A) before trial by serving, or during trial by stating on the record, a
      notice of dismissal at any time before a hearing on motion for
      summary judgment, or if none is served or if the motion is denied,
      before retirement of the jury in a case tried before a jury or before
      submission of a nonjury case to the court for decision, or (B) by filing
      a stipulation of dismissal signed by all current parties to the action.
      Unless otherwise stated in the notice or stipulation, the dismissal is
      without prejudice, except that a notice of dismissal operates as an
      adjudication on the merits when served by a plaintiff who has once
      dismissed in any court an action based on or including the same claim.

(Emphasis added.)

      As a general rule, the effect of a plaintiff’s announcement of a voluntary

dismissal is “immediate, final, and irreversible,” terminating the trial court’s

authority to enter further orders as to that defendant who has been dropped from

the action. Kelly v. Colston, 

, 694 (Fla. 1st DCA 2008).6 Such a

rule applies even where (as here) appellants filed the notice of voluntary dismissal

after the trial court had orally announced its ruling dismissing the entire action but

before the court entered its written order of dismissal. See Freeman v. Mintz, 

(Fla. 3d DCA 1988); Gonzalez v. Mulreany, 

(Fla. 3d

DCA 1979).

      Because no written order was entered until after appellants had voluntarily

dismissed the Williams Island Defendants, that voluntary dismissal rendered the
6 There are exceptions (not applicable here) in which the trial court retains case

jurisdiction to, inter alia, address attorney’s fees and costs, enforce its own orders,
or to consider a narrow range of circumstances for relief under Florida Rule of
Civil Procedure 1.540. See, e.g., Pino v. Bank of New York, 

(Fla.
2013); Giuffre v. Edwards, 

(Fla. 4th DCA 2017).


                                          15
subsequently-entered order of dismissal ineffective as to the Williams Island

Defendants, as the trial court was without authority to enter any further order as to

those defendants.7

      We therefore reverse that portion of the trial court’s order which dismissed

all claims against the Williams Island Defendants. The remaining discussion

therefore addresses the trial court’s order, and appellants’ claims on appeal, as they

relate only to the South Island Defendants.8

      2. Whether appellees were bound by the Easement, Operating and
      Development Agreement (the “EODA”).

      Appellants contend that appellees were bound by the EODA, forming a basis

for appellants’ causes of action in Count I (breach of covenant against the South

Island Defendants), Count II (specific performance of covenant against the South

Island Defendants) and Count III (breach of the duty of good faith and fair dealing

against the South Island Defendants). However, the EODA specifically provided

that “in no event shall any of the South Island easement areas include any portions




7 Therefore, and as a practical matter, appellants’ notice of voluntary dismissal of
the Williams Island Defendants operated as a dismissal without prejudice, and the
trial court’s subsequent order dismissing all claims against the Williams Island
Defendants with prejudice was of no force and effect.
8 We therefore express no opinion whether, or the extent to which, our affirmance

of the remaining portion of the trial court’s dismissal order would apply with equal
force to the Williams Island Defendants had appellants not voluntarily dismissed
them as parties to the action.

                                         16
of the individual lots within the South Island, other than the easements and rights

of record existing as of the date of this agreement.”

      In the instant case, a central focus of appellants’ claims involved the

construction of a sidewalk over the individual lots of the South Island Defendants.

Because any portion of the individual lots within the South Island (other than

easements and rights of record existing as of the date of the EODA) were expressly

excluded, the South Island Defendants were entitled to contest or protest such

activity occurring on or planned for their property.

      We further conclude that the trial court correctly determined that the South

Island Defendants were not parties or signatories to the EODA and were not bound

by its terms. As discussed earlier, the EODA defined the term “Parties” as Two

Islands Development Corp., Island Estates Homeowner’s Association, Inc., and

Gary Cohen as Trustee under the Trust Agreement dated December 22, 1995, and

their respective successors. On its face, while the South Island Homeowner’s

Association was a party to the EODA, the individual owners (i.e., the South Island

Defendants) were not, and in fact were separately defined in the EODA as “Parcel

Owners.”

      Nor can appellants prevail upon their argument that the EODA is a covenant

running with the land, therefore binding the South Island Defendants even though

they were not parties or signatories to the EODA. A covenant running with the



                                         17
land must create an interest in the property itself and affect the mode and use or

enjoyment of the premises. Suniland Assocs., Ltd. v. Wilbenka, Inc., 

(Fla. 3d DCA 1995); Maule Indus. v. Sheffield Steel Prod., 

(Fla. 3d DCA 1958). The South Island Defendants’ individual lots are specifically

excluded from the EODA. As a result, the EODA cannot and did not create an

easement on those individual lots and therefore cannot create an “interest” in those

lots such that it could constitute a covenant running with the land.9 The trial court

properly dismissed Counts I, II and III against the South Island Defendants on this

basis.10

       3. Whether appellants’ remaining claims are barred by the litigation
       privilege.

       Additionally, we hold that the trial court properly determined that, as to

individual South Island defendant Feder, the tortious interference with a settlement

claim (Count V) was barred by the litigation privilege.11

9 We also reject appellants’ contention that the trial court acted prematurely in
dismissing the action based upon its construction of the EODA. The EODA was
attached as an exhibit to the Amended Complaint and is considered a part of the
“four corners” of the pleading in the context of ruling on a motion to dismiss. See
Fla. R. Civ. P. 1.130(b) (providing that “[a]ny exhibit attached to a pleading must
be considered a part thereof for all purposes”); Santiago v. Mauna Loa Invs., LLC,

(Fla. 2016); Blue Supply Corp. v. Novos Electro Mech., Inc., 

(Fla. 3d DCA 2008); Ginsberg v. Lennar Fla. Holdings, Inc., 

490 (Fla. 3d DCA 1994).
10 We further hold, without additional discussion, that the trial court properly

dismissed Counts I, II and III against the South Island Defendants upon a
determination that those counts were barred by Florida’s anti-SLAPP statute,
section 720.304, Florida Statutes (2015).

                                         18
      As a general rule, Florida’s litigation privilege affords absolute immunity for

any act occurring during the course of judicial proceedings, so long as the act is

“relevant or material to, the cause in hand or subject of inquiry.” Myers v. Hodges,

, 361 (Fla. 1907); Echevarria, McCalla, Raymer, Barrett & Frappier v.

Cole, 

, 383 (Fla. 2007); Levin, Middlebrooks, Mabie, Thomas,

Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 

(Fla. 1994).

      In 

, the Florida Supreme Court extended the

litigation privilege, finding that “absolute immunity must be afforded to any act

occurring during the course of a judicial proceeding, regardless of whether the act

involves a defamatory statement or other tortious behavior . . . so long as the act

has some relation to the proceeding.” Levin further held that “[j]ust as participants

in litigation must be free to engage in unhindered communication, so too must

those participants be free to use their best judgment in prosecuting or defending a

lawsuit without fear of having to defend their actions in a subsequent civil action

for misconduct.” 

Supreme Court in 

, further

extended the litigation privilege, holding that “[t]he litigation privilege applies

across the board to actions in Florida, both to common-law causes of action, those


11 Because we have already determined, on other grounds, that the trial court
properly dismissed Counts I, II and III, see 

, we do not reach the
question of whether the litigation privilege barred these claims as well.

                                         19
initiated pursuant to a statute, or some other origin. Absolute immunity must be

afforded to any act occurring during the course of a judicial proceeding . . . so long

as the act has some relation to the proceeding.”12

      In the instant case, the alleged actions by Feder and others,13 which form the

basis for the claim of tortious interference with settlement agreement (Count V),

constitute protected communicative acts.14 Appellants alleged that Feder made

representations which “intentionally and unjustifiably interfered with the

Settlement Agreement [in the Vested Rights Action involving the Williams Island

Property Owners’ Association], after Feder convinced the Williams Island

Defendants to join forces in the litigation filed by the IEHOA [the Island Estates

Homeowners Association].” Appellants further allege that, as a result of Feder’s

representations, the “Williams Island Property Owners’ Association breached the

Settlement Agreement and joined IEHOA in litigation against Plaintiffs,” resulting

in damages.

12 Though not directly relevant to our decision, we note that the Florida Supreme
Court recently held that the litigation privilege did not bar the filing of a malicious
prosecution claim that was based upon the act of adding a party defendant to a civil
suit. Debrincat v. Fischer, 

(Fla. 2017).
13 Count V set forth a claim of tortious interference against Feder and the Williams

Island Defendants.
14 Our court, in the recent case of Arko Plumbing Corp. v. Rudd, 

(Fla. 3d DCA 2017) distinguished communicative and noncommunicative acts in
delineating the proper boundaries for application of the litigation privilege. We
held under the facts in Arko that the attorney’s noncommunicative acts fell outside
the protection of the litigation privilege. 

.


                                          20
       The tortious interference claim against Feder is barred by the litigation

privilege because the alleged representations and actions by Feder “occur[ed]

during the course of a judicial proceeding” and these alleged acts “ha[ve] some

relation to the proceeding.” 

. Thus, dismissal of this

count with prejudice, based on the litigation privilege, was proper.

      However, we hold that the trial court erred in dismissing Count IV, alleging

slander of title against four individual South Island defendants. In that count,

Cohen (as trustee of the Trust) alleges that he is the owner of the North Island; that

Cohen was currently developing Príve at Island Estates on the North Island, and

that four individual South Island defendants (Feder, Sawicki, Kleiman and Coba),

in an effort to thwart Cohen’s planned development of Príve at Island Estates,

made false and malicious statements about the nature of Cohen’s interest in the

North Island, including false and malicious statements to prospective buyers that

Cohen did not have the right to build the planned development and that people

coming to sales events should “turn around their cars” because no multi-family

project would be built on the North Island. Count IV further alleges that these

defendants published these misrepresentations to third parties, causing damages

which include lost sales and reduced marketability of the property.

      “An action for slander of title is based upon the false and malicious

statement, oral or written, made in disparagement of a person’s title to real or



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personal property, or of some right of his, causing him special damages.” Old

Plantation Corp. v. Maule Indus., Inc., 

, 181 (Fla. 1953) (internal

citations omitted). Given the allegations of the complaint, and the present stage of

the proceedings, we conclude that the trial court erred in dismissing appellants’

claim that these four individual South Island Defendants made false and slanderous

statements and misrepresentations regarding Cohen’s ownership rights to the

property.

         CONCLUSION

         We affirm the trial court’s order dismissing with prejudice counts I, II and

III against the South Island Defendants, and dismissing with prejudice Count V

against individual South Island defendant Feder.

         We reverse those portions of the trial court’s order that dismissed with

prejudice all counts against the Williams Island Defendants, and that dismissed

with prejudice Count IV against individual South Island defendants Feder,

Sawicki, Kleiman and Coba.

         Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.15




15   We affirm without further discussion the remaining issues raised by appellants.

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