The Litigation Privilege Applied to Malicious Prosecution

Wolfe v. Foreman, 3D10-3055 (Fla. 3d DCA 2013):

The issue in this appeal was whether the litigation privilege, which protects actions taken in the course of and related to a judicial proceeding from civil liability, applies to causes of action for: (1) abuse of process; and (2) malicious prosecution. The law is clear that the litigation privilege applies to abuse of process; however, the law is not as clear whether the litigation privilege also applies to a cause of action for malicious prosecution.

Ferrell and Wolfe were involved in litigation over control of an LLC. Ferrell, dissatisfied with the litigation’s outcome, sued his partners in federal court. Ferrell retained Appellees to serve as counsel. The Appellees filed a complaint on January 6, 2007 on behalf of Ferrell. On March 6, 2007, after receiving documents from Wolfe demonstrating that the issues raised in the federal case were already raised and settled in the prior litigation, Appellees informed Ferrell that they could not ethically pursue his claims and must withdraw. Appellees withdrew after seeking and receiving permission from the court as required under applicable rules. Ferrell’s complaint was dismissed and final judgment was entered.

Appellants sued Appellees for abuse of process and malicious prosecution. The trial court found that the pleadings demonstrated that the alleged wrongful actions were taken in the course of and related to litigation and were thus absolutely privileged under Florida law. The Third District held that the litigation privilege applies to causes of action for: (1) abuse of process; and (2) malicious prosecution. Here, the attorneys withdrew as soon as they realized the client had misrepresented the facts.

The elements for a malicious prosecution cause of action are that a judicial proceeding: (1) was commenced against the plaintiff; (2) was instigated by the defendant; (3) ended in favor of the plaintiff; (4) was instigated with malice; (5) was commenced without probable cause; and (6) resulted in damage to the plaintiff. The Third District was guided by the Florida Supreme Court in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) and Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007). Levin held that 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. Echevarria reiterated that the litigation privilege applies in all causes of action, statutory as well as common law.

The Florida Supreme Court has stated that the litigation privilege applies to all causes of actions 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.” Echevarria at 384. The Third District believed it was obligated to conclude that the filing of a complaint is protected by the litigation privilege.