Stephen Fischer v. Richard Debrincat and Jason Debrincat

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STEPHEN FISCHER,

Appellant,

v.

RICHARD DEBRINCAT and JASON DEBRINCAT,

Appellees.

No. 4D14-1855

[ July 15, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Peter D. Blanc, Judge; L.T. Case No.

2009CA015835XXXXMB.

John M. Jorgensen and S. Brian Bull of Scott, Harris, Bryan, Barra &

Jorgensen, P.A., Palm Beach Gardens, for appellant.

Barry W. Taylor of Taylor & Taylor Law, P.A., Palm Beach Gardens, for

appellees.

TAYLOR, J.

The issue presented in this appeal is whether the litigation privilege

bars a claim for malicious prosecution. In appellant’s malicious

prosecution action below, the trial court granted appellees’ motion for

summary judgment and later entered final judgment against appellant.

We reverse and hold that the litigation privilege cannot be applied to bar

the filing of a claim for malicious prosecution where the elements of that

tort are satisfied.

Appellees commenced a civil lawsuit against various defendants and

later added appellant as a party defendant. In the underlying proceeding,

appellees sued appellant for defamation, defamation per se, tortious

interference, and conspiracy. Appellees later dropped appellant from the

underlying proceeding.

Appellant then brought the instant action for malicious prosecution

against appellees, claiming that appellees acted with malice towards him

in pursuing the underlying proceeding against him without probable

cause.

Appellees raised the litigation privilege as an affirmative defense in their

operative answer.

Appellees eventually moved for summary judgment, arguing that the

litigation privilege afforded them immunity for their conduct of joining

appellant as a defendant in the underlying lawsuit. Appellees relied upon

Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), a case holding that

the litigation privilege applies to a cause of action for malicious

prosecution. The trial court granted appellees’ motion for summary

judgment and later entered a final judgment in their favor.

Appellant argues that the trial court improperly granted summary

judgment based solely upon the litigation privilege. He contends that the

tort of malicious prosecution is based upon the unfounded prior civil

proceeding itself and not the acts taken in the course of that proceeding.

In response, appellees argue that the trial court correctly found that

the litigation privilege precluded appellant’s action against them for

malicious prosecution. Appellees contend that when they joined appellant

as a defendant in the underlying lawsuit, they were protected by the

litigation privilege because they were performing an “act required or

permitted by law in the due course of the judicial proceedings or as

necessarily preliminary thereto.”

The standard of review applicable to a summary judgment posing a

pure question of law is de novo. Eco-Tradition, LLC v. Pennzoil-Quaker

State Co., 137 So. 3d 495, 496 (Fla. 4th DCA 2014).

Malicious prosecution is a “very ancient” cause of action, one that has

long been recognized by the Florida Supreme Court. See, e.g., Tatum Bros.

Real Estate & Inv. Co. v. Watson, 92 Fla. 278, 288, 109 So. 623, 626 (1926).

To prevail in a malicious prosecution action, a plaintiff must establish the

following six elements:

(1) an original criminal or civil judicial proceeding against the

present plaintiff was commenced or continued; (2) the present

defendant was the legal cause of the original proceeding

against the present plaintiff as the defendant in the original

proceeding; (3) the termination of the original proceeding

constituted a bona fide termination of that proceeding in favor

of the present plaintiff; (4) there was an absence of probable

cause for the original proceeding; (5) there was malice on the

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part of the present defendant, and (6) the plaintiff suffered

damage as a result of the original proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

There is, however, some tension between the tort of malicious

prosecution and the litigation privilege. Florida’s litigation privilege has

its roots in Myers v. Hodges, 53 Fla. 197, 210, 44 So. 357, 361 (1907), in

which our supreme court held that defamatory statements made in the

course of a judicial proceeding are absolutely privileged if they are relevant

to the proceeding, but are protected only by a qualified privilege—which

can be overcome by a showing of malice—if they are irrelevant to the

proceeding.

As a general proposition, the litigation privilege “extends to the

protection of the judge, parties, counsel, and witnesses, and arises

immediately upon the doing of any act required or permitted by law in the

due course of the judicial proceedings or as necessarily preliminary thereto.”

Ange v. State, 98 Fla. 538, 541, 123 So. 916, 917 (1929) (emphasis added),

receded from in part by Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla. 1992)

(holding that “defamatory statements voluntarily made by private

individuals to the police or the state’s attorney prior to the institution of

criminal charges are presumptively qualifiedly privileged,” and receding

from Ange to the extent it is inconsistent with that ruling) (footnotes

omitted).

The Florida Supreme Court eventually extended the litigation privilege

doctrine beyond its traditional application to defamatory statements,

holding 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, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d

606, 608 (Fla. 1994). The supreme court reasoned: “Just 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.” Id.

The Florida Supreme Court later explained that “[t]he litigation privilege

applies across the board to actions in Florida, both to common-law causes

of action, those initiated pursuant to a statute, or of some other origin.”

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380,

384 (Fla. 2007).

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Relying upon the broad language of Levin and Echevarria, the Third

District has held that the litigation privilege applies to a cause of action for

malicious prosecution. See Wolfe, 128 So. 3d at 68-70. In Wolfe, the Third

District affirmed a judgment on the pleadings in favor of the defendants

on the plaintiff’s cause of action for malicious prosecution, concluding that

the defendants’ acts of filing a complaint and briefly prosecuting a civil

case were protected by the litigation privilege because those actions

“indisputably occurred during and were related to” the judicial proceeding.

Id. at 70-71. The court reasoned: “It is difficult to imagine any act that

would fit more firmly within the parameters of Levin and Echevarria than

the actual filing of a complaint. The filing of a complaint, which initiates

the judicial proceedings, obviously ‘occurs during the course of a judicial

proceeding’ and ‘relates to the proceeding.’” Id. at 70. The Third District

was “also unpersuaded by the argument that, unlike other torts, the

application of the litigation privilege to the tort of malicious prosecution

would effectively eliminate malicious prosecution as a cause of action

[altogether].” Id. at 70-71. The Third District believed that “[a]cts

committed prior to the filing of the complaint may not, in some cases, enjoy

the broad protection of the privilege.” Id. at 71.

In our view, Wolfe went too far in its application of the litigation

privilege. Because the commencement or continuation of an original

criminal or civil judicial proceeding is an act “occurring during the course

of a judicial proceeding” and having “some relation to the proceeding,”

malicious prosecution could never be established if causing the

commencement or continuation of an original proceeding against the

plaintiff were afforded absolute immunity under the litigation privilege. If

the litigation privilege could apply to bar a malicious prosecution action,

this would mean that the tort of malicious prosecution would be effectively

abolished in Florida—or, at the very least, eviscerated beyond recognition.

The Florida Supreme Court has long recognized the viability of a cause

of action for malicious prosecution. See, e.g., Burns v. GCC Beverages,

Inc., 502 So. 2d 1217, 1218 (Fla. 1986); Adams v. Whitfield, 290 So. 2d 49,

51 (Fla. 1974); Tatum Bros., 92 Fla. at 288, 109 So. at 626.

Moreover, other cases have recognized that the litigation privilege does

not bar a malicious prosecution action. For example, in Wright v. Yurko,

446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984), which was cited with

approval in Levin, the Fifth District held that the litigation privilege did not

bar a claim for malicious prosecution that was brought against the two

underlying plaintiffs and their expert witness. While the Fifth District

recognized that torts such as “perjury, libel, slander, defamation, and the

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like” were not actionable when committed in connection with judicial

proceedings, the court explained that “[t]he only private remedy in this

context allowed or recognized is the ancient cause of action of malicious

prosecution.” Id. at 1164-65 (emphasis added).

Similarly, in a post-Echevarria case, the Second District held that a

plaintiff’s claim for malicious prosecution was not barred by the litigation

privilege where the defendants allegedly made a false criminal complaint

against the plaintiff. See Olson v. Johnson, 961 So. 2d 356 (Fla. 2d DCA

2007). In an opinion authored by then-Judge Canady, the Second District

emphasized the unique nature of malicious prosecution actions:

In relying on Fridovich, Johnson confuses the law of

defamation—with which Fridovich deals—with the law of

malicious prosecution—which is at issue in the instant case.

. . . There is no equivalent privilege available to a complaining

witness . . . who is named as a defendant in a malicious

prosecution action. Such a defendant must defend against a

malicious prosecution claim by disputing an element or

elements of the cause of action alleged or by raising an

applicable affirmative defense.

Id. at 360-61 (emphasis added); see also Am. Nat’l Title & Escrow of Fla.,

Inc. v. Guarantee Title & Trust Co., 810 So. 2d 996, 998 (Fla. 4th DCA 2002)

(reversing trial court’s dismissal of various claims, including malicious

prosecution, where the plaintiffs alleged that the defendants conspired to

maliciously give false information to law enforcement: “These allegations,

if proved, would not be protected by the absolute litigation privilege which

protected the law firm for doing things pursuant to court orders. They

would enjoy at most a qualified privilege . . . .”).

To be sure, Echevarria contains broad language stating that the

litigation privilege applies “in all causes of action, whether for common-

law torts or statutory violations.” 950 So. 2d at 384. But this language

could not have been intended “to sweep so broadly” as to provide absolute

immunity from liability for malicious prosecution. Cf. DelMonico v.

Traynor, 116 So. 3d 1205, 1208 (Fla. 2013) (“We hold that Florida’s

absolute privilege, as this Court has developed the common law doctrine,

was never intended to sweep so broadly as to provide absolute immunity

from liability to an attorney for alleged defamatory statements the attorney

makes during ex-parte, out-of-court questioning of a potential, nonparty

witness in the course of investigating a pending lawsuit.”).

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As a practical matter, such a broad application of the litigation privilege

would mean that a malicious prosecution claim would rarely, if ever, be

actionable. Indeed, it is difficult to envision how a malicious prosecution

claim would ever be actionable where the original proceeding was a civil

lawsuit.

The Florida Supreme Court has declared that it “does not intentionally

overrule itself sub silentio.” Puryear v. State, 810 So. 2d 901, 905 (Fla.

2002). If the litigation privilege could be applied to bar a malicious

prosecution action, this would mean that the Florida Supreme Court

silently eviscerated the longstanding common law tort of malicious

prosecution. Had the Florida Supreme Court truly meant for the litigation

privilege to immunize conduct that would otherwise constitute malicious

prosecution under the common law, one would have expected the court to

say so explicitly.

Commencement or continuation of an original judicial proceeding is an

element of malicious prosecution, a longstanding tort with ancient roots.

It is unfathomable that the Florida Supreme Court intended to cloak the

commencement or continuation of a judicial proceeding with absolute

immunity when such conduct occurs as an element of the tort of malicious

prosecution.

California has addressed this issue. Although California—like

Florida—has an extraordinarily broad litigation privilege, the California

Supreme Court has explained that the litigation privilege does not apply

to the tort of malicious prosecution. See Silberg v. Anderson, 50 Cal.3d

205, 212 (1990). Under California law, the litigation privilege is absolute

in nature and applies to all torts “except malicious prosecution.” Id. at

211-12, 215.

Malicious prosecution is sui generis because “[t]he essence of the tort

of malicious prosecution is the misuse of legal machinery for an improper

purpose.” Rushing v. Bosse, 652 So. 2d 869, 874 (Fla. 4th DCA 1995).

“This tort has its own special elements and defenses.” Wright, 446 So. 2d

at 1165. The wrongful act is committed when the tortfeasor—acting with

malice and without probable cause—engages in conduct causing the

commencement or continuation of a judicial proceeding against the

plaintiff. An action for malicious prosecution—which is based as a matter

of law on causing the commencement or continuation of an original

judicial proceeding—could never occur outside the context of litigation.

In short, we conclude that the litigation privilege cannot be applied to

bar the filing of a claim for malicious prosecution. We reverse the

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summary judgment, remand for further proceedings, and certify conflict

with Wolfe.

Reversed.

MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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