THE FINAL WORD ON THE LITIGATION PRIVILEGE AND MALICIOUS PROSECUTION

By Ted  Babbitt
Published July / August 2017

The tort of malicious prosecution has been recognized in the State of Florida since at least 1926.    In Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) the Florida Supreme Court established the following elements for a malicious prosecution action.an original criminal or civil judicial proceeding

(1)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 part of the present defendants; and (6) the
plaintiff suffered damage as a result of the original
proceeding.

Florida has also established a litigation privilege protecting against an action for liable or slander anything said in a lawsuit by a lawyer or a judge.  In Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3rd DCA 2013)   The Third District held that the litigation privilege applied to a cause of action for malicious prosecution.  The Fourth District Court of Appeal in Fischer v. Debrincat, 169 So. 3d 1204 (Fla. 4th DCA 2015) was faced with the same issue raised in Wolfe, supra.  The Fourth District at 1209 declined to follow the Third District’s opinion in Wolfe and held:

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 Fourth District certified conflict with Wolfe and the Supreme Court in Debrincat v Fischer at 42 Fla. L. Weekly S141 (Fla. Feb. 9, 2017) declined to uphold the Third District’s opinion in Wolfe and affirmed and  approved the Fourth District Court of Appeals decision in Fischer v Debrincat.    At 1207 the Supreme Court held

Applying the litigation privilege here would
eviscerate this long-established cause of action
for malicious prosecution.  Specifically, the
first element of a claim for malicious prosecution
is that “an original criminal or civil judicial
proceeding against the present plaintiff was
commenced or continued.”  Id.  (emphasis
added).  Certainly, the filing of a lawsuit and
the joining of a party defendant is the
commencement of a judicial proceeding
against that party as delineated in Alamo.
Indeed, as the Fourth District cogently explained
in Fischer, “[a]n 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.”  169 So. 3d
at 1209.  Therefore, “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.

The Supreme Court thus held that the litigation privilege did not bar the filing of a claim for malicious prosecution that was based on adding a party defendant to a civil lawsuit.  The Supreme Court approved the Fourth District’s decision in Fisher v. Debrincat and disapproved the Third District’s decision in Wolfe v. Foreman thus retaining the cause of action for malicious prosecution in Florida.

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