KIRVIN v. CLARK No. WW-473.
396 So.2d 1203 (1981)
Bobby KIRVIN, Appellant, v. Charles Watson CLARK, Appellee.
District Court of Appeal of Florida, First District.
April 21, 1981.
J. Ben Watkins, of Watkins & Watkins, Apalachicola, for appellant.
Jean Laramore, of Oertel & Laramore, Tallahassee, for appellee.
OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Appellee sued Appellant for damages, alleging that the latter had committed an assault and battery upon him. Appellant's amended counterclaim, seeking damages for alleged defamatory remarks uttered by Appellee, was dismissed with prejudice. It is from the order of dismissal that Appellant has taken this appeal.
Looking solely to the allegations of the amended counterclaim, and accepting as true all well pleaded facts as well as all reasonable inferences arising therefrom. Poulos v. Vordermeier,
The particular allegations which we believe sufficient to state a cause of action for defamation per se are quoted as follows:
These words, if true, would imply that Kirvin, by such conduct, was guilty of a violation of Section 836.05, Florida Statutes (1979), a felony of the second degree.
Appellee urges that the alleged defamatory words were absolutely privileged because published in the course of judicial proceedings. If the alleged defamatory words are indeed subject to an absolute privilege (a matter which we do not here need to decide), such privilege is not disclosed by the allegations of the amended counterclaim and therefore may not be asserted in a motion to dismiss, but rather must be pleaded as a defense.
The order dismissing the amended counterclaim is reversed. Upon remand, Appellee should be afforded reasonable opportunity to file such defenses thereto as he may be advised.
REVERSED AND REMANDED.
MILLS, C.J., concurs.
ROBERT P. SMITH, J., dissents without opinion.
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