MALICIOUS PROSECUTION AND THE LITIGATION PRIVILEGE

By Ted Babbitt
Published 2/2016

 

MALICIOUS PROSECUTION AND THE LITIGATION PRIVILEGE

By Ted Babbitt

 

The litigation privilege is an absolute privilege which protects attorneys and litigants because of wrongful acts taken in the course of and relating to litigation in Florida.  It was first recognized in Florida in 1907 in Myers v Hodges, 44 So. 357 (Fla. 1907).  It was extended in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) beyond defamatory statements of slander or libel.  In Levin at 608 the Supreme Court held:

We find 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
such as the alleged misconduct at issue, so long
as the act has some relation to the proceeding . . . .
Participants [must] 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.

The Florida Supreme Court extended the privilege in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) when it declared at 384:

The 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.

In Wolfe v Foreman, 128 So. 3d 67 (Fla. 3rd DCA 2013) the issue was  whether the litigation privilege applied to the filing of a cause of action based on a claim of malicious prosecution.  In essence the question was whether the filing of the allegedly malicious complaint was itself protected by the litigation privilege.  Since the basis of malicious prosecution is the malicious filing of a lawsuit without probable cause, a holding that such a filing was absolutely privileged would bar all causes of action for malicious prosecution in Florida.  In Wolfe, supra, at 70, the Third District concluded that the malicious filing of a complaint was, indeed, protected by the litigation privilege even if that effectively barred all actions for malicious prosecution in Florida.  The Court held:

Because the Florida Supreme Court has clearly
and unambiguously stated, not once, but twice,
that the litigation privilege applies to all causes
of actions, and specifically articulated that its
rationale for applying the privilege so broadly
was to permit the participants to 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,”  we are obligated to
conclude that the act complained of here –
the filing of the complaint – is protected by
the litigation privilege.  Thus, the trial court
properly granted a judgment on the pleadings
for Wolfe’s cause of action against the Miami
Lawyers for malicious prosecution.

In Fisher v. Debrincat, 169 So. 3d 1204 (Fla. Fourth DCA 2015) the Fourth District Court of Appeals refused to follow Wolfe, supra, and held that a malicious prosecution action was not barred by the litigation privilege.  At 1207, the Fourth District held:

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, this would mean that the tort of
malicious prosecution would be effectively
abolished in Florida – or, at the very least,
eviscerated beyond recognition.

The Fourth District cited a similar case in the Fifth District, Wright v Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984) as well as the Second District holding in Olson v. Johnson, 961 So. 2d 356 (Fla. 2nd DCA 2007).

In refusing to follow the Third District’s opinion in Wolfe, supra, the Fourth District in Fisher, supra, makes a compelling argument that the Supreme Court’s broad language in Levin, supra, was not intended to essentially eliminate malicious prosecution cases in Florida.  At 1208, the Fourth District holds:

As a practical matter, such a broad application
of the litigation privilege would mean that a
malicious prosecution 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.

The Fourth District in Rivernider v. Meyer, 174 So. 3d 602 (Fla. Fourth DCA 2015) and in Edwards v Epstein and Rothstein, 40 Fla. L. Weekly D2550 (Fla. 4th DCA Nov. 12, 2015) reaffirmed its holding in Fischer, supra, and has now three times certified conflict with Wolfe to the Florida Supreme Court.

Three out of the five District Courts have refused to follow the Third District’s opinion in Wolfe, supra, which essentially eliminated the tort of malicious prosecution in Florida on the basis of the litigation privilege.  While the ultimate decision rests with the Supreme Court, it is unlikely Wolfe will stand.