       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         THERESA RIVERNIDER,
                              Appellant,

                                     v.

           STEVEN H. MEYER and STEVEN H. MEYER, P.A.,
                           Appellees.

                               No. 4D14-819

                           [September 9, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;     Edward      Fine,    Judge;     L.T.    Case     No.
2013CA005398XXXXMB.

   John J.R. Skrandel and Jerome F. Skrandel of Jerome F. Skrandel, PA,
North Palm Beach, and Philip M. Burlington of Burlington & Rockenbach,
P.A., West Palm Beach, for appellant.

  Maria N. Vernace and D. David Keller of Keller Landsberg PA, Fort
Lauderdale, for appellees.

WARNER, J.

    Appellant challenges a final summary judgment in her malicious
prosecution action against appellee, a lawyer whose client obtained a
judgment against appellant in the underlying action. The trial court
granted summary judgment both on the application of the litigation
privilege to bar the claims, as well as on the conclusion that there was no
material issue of fact that appellee had probable cause in pursuing the
underlying action. Although this Court recently has determined that the
litigation privilege did not apply to malicious prosecution actions, we still
affirm the grant of summary judgment based upon the trial court’s
alternative reasoning.

   Appellee, Stephen Meyer, represented Sterling Villages of Palm Beach
Lakes Condominium Association and secured a judgment in county court
against appellant, Theresa Rivernider, for unpaid association dues. On
behalf of the association, he filed a garnishment action against Rivernider’s
tenant. He secured a writ of garnishment, and the tenant began paying
his rent to the association. After the writ was obtained, Meyer filed a
motion for contempt against Rivernider, alleging that her property
manager (her son-in-law) threatened to drive the tenant out of the
condominium if the tenant failed to pay rent to him directly, rather than
the association. In addition, the tenant caught the son-in-law vandalizing
the unit’s air conditioning unit on videotape. The motion alleged that
Rivernider had “given her tacit or express permission to [the son-in-law] to
engage in [this] criminal conduct[,]” and requested that Rivernider be held
in contempt and ordered to pay for the repairs to the air conditioner.

   The county court held a hearing during which both the tenant and
Rivernider testified. The county court held Rivernider in contempt, finding
by clear and convincing evidence that the son-in-law had “intentionally
damaged the air conditioning unit for the condominium on several
occasions in an effort to drive [the Tenant] out of the condominium so that
the [Association] would not collect any rent from him pursuant to the final
judgment of garnishment.” The court also found “by clear and convincing
evidence that [Rivernider] is responsible for the actions of her
representative, [the son-in-law], and that he acted with [Rivernider’s]
knowledge and direction.” The court ordered Rivernider to reimburse the
tenant the cost of repairing the air conditioner by a certain date, after
which the amount would increase by $100 per day until paid.

   Rivernider appealed the county court’s contempt order to the circuit
court, which reversed and remanded. The circuit court found that the
county court’s order constituted a finding of indirect criminal contempt
because it did not impose a purgeable sanction. As such, the circuit court
found that the county court should have complied with Florida Rule of
Criminal Procedure 3.840(a), which requires orders to show cause
regarding indirect criminal contempt be based “on the judge’s own motion
or on affidavit of any person having knowledge of the facts[.]”

   On remand, Meyer complied with Rule 3.840(a) and filed an affidavit
from the tenant with his motion for criminal contempt. In the affidavit,
the tenant specifically alleged that he “received a telephone message from
Mrs. Rivernider telling me that I had to give the rent checks to [the son-in-
law] or she would not permit me to live in the condominium.” The county
court issued an order to show cause as to why Rivernider should not be
held in criminal contempt, finding probable cause to believe that she had
willfully and intentionally violated the court’s order of garnishment.

    However, this order was quashed as well after Rivernider filed a petition
for writ of prohibition with the circuit court. The circuit court found that
the tenant’s affidavit did not provide probable cause against Rivernider,

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because it did not allege that she had personal knowledge of the acts of
her son-in-law, although the court noted that it did not think that it was
impossible for a sufficient affidavit to be filed. It therefore granted the writ
of prohibition and quashed the order to show cause. One judge dissented,
finding the affidavit “sufficient to satisfy the requirements of Florida Rule
of Criminal Procedure 3.840(a)[.]”

   The circuit court’s decision prompted Rivernider to file her action for
malicious prosecution. While the petition for writ of prohibition was still
pending with the circuit court, the association filed a satisfaction of
judgment with the county court, noting that the underlying judgment had
been paid. Upon the circuit court quashing the order to show cause, the
association withdrew its motion for criminal contempt.

   After answering and beginning discovery, Meyer moved for summary
judgment. The trial court granted summary judgment on two grounds.
First, it found that Meyer’s actions were protected by the litigation
privilege, thus precluding a malicious prosecution action. Second, the
court found that probable cause was present to justify the filing of the
motion for contempt, and therefore one of the elements of the action for
malicious prosecution was absent. As such, the court found that Meyer
was entitled to a judgment dismissing the claim. Rivernider appeals this
order.

    Recently, in Fischer v. Debrincat, 40 Fla. L. Weekly D1635 (Fla. 4th DCA
July 15, 2015), our Court held that the litigation privilege cannot be
applied to bar an action for malicious prosecution where all of the elements
of malicious prosecution are satisfied. Here, in its first finding, the trial
court stated that Rivernider’s claims were barred by the litigation privilege
because the contested acts “occurred during and arose out of and were
related to and connected with a pending civil action.” However, pursuant
to Fischer, the litigation privilege does not apply in such cases unless an
element of malicious prosecution is lacking. Accordingly, considering this
first finding alone, the trial court erred in granting final summary
judgment based upon the litigation privilege.

   However, the court made an alternative ruling, essentially concluding
that all of the elements of malicious prosecution had not been satisfied, in
that the court found no material dispute that Meyer had probable cause
to pursue the criminal contempt against Rivernider. There are six
elements to a malicious prosecution claim:

      1) the commencement of a judicial proceeding; 2) its legal
      causation by the present defendant against the plaintiff; 3) its

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      bona fide termination in favor of the plaintiff; 4) the absence
      of probable cause for the prosecution; 5) malice; [and] 6)
      damages.

Hickman v. Barclay’s Int’l Realty, Inc., 16 So. 3d 154, 155 (Fla. 4th DCA
2009), rev. denied, 37 So. 3d 847 (Fla. 2010) (quoting Dorf v. Usher, 514
So. 2d 68, 69 (Fla. 4th DCA 1987)).

  Regarding the absence of probable cause, the Florida Supreme Court
has explained:

      In an action for malicious prosecution, the question of
      probable cause is a mixed question of law and fact. When the
      facts relied on to show probable cause are in dispute, their
      existence is a question of fact for the determination of the jury;
      but their legal effect when found or admitted to be true, is for
      the court to decide as a question of law.

Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373, 381
(Fla. 1999) (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352,
1357 (Fla. 1994)); see also Dorf, 514 So. 2d at 68 (“Although some of the
facts may be in dispute, the trial court correctly found that there was no
dispute with respect to the material facts on those elements. Probable
cause then became a question of law for the court.”).

    The Third District has noted that the standard for showing the absence
of probable cause is even higher in an action against an attorney, because
of the lawyer’s duty to the client:

          In a malicious prosecution action against attorneys, the
      plaintiff’s standard for showing lack of probable cause
      appears to be higher than the standard in other malicious
      prosecution actions. In an action against an attorney, “[i]t is
      the attorney’s reasonable and honest belief that his client has
      a tenable claim that is the attorney’s probable cause for
      representation, and not the attorney’s conviction that [the]
      client must prevail.” C.A. Hansen Corp. v. Wicker, Smith,
      Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, P.A., 613
      So. 2d 1336, 1338 (Fla. 3d DCA 1993) (quoting Central Fla.
      Mach. Co., Inc. v. Williams, 424 So. 2d 201, 203 (Fla. 2d DCA
      1983)). An attorney has the duty to represent the client
      zealously, not to insure that the client will succeed. C.A.
      Hansen Corp., 613 So. 2d at 1338. Furthermore, so long as
      the attorney investigates the facts and law, and prosecutes a

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      claim which a reasonable lawyer would regard as tenable, the
      plaintiff “has no right to assert malicious prosecution against
      the attorney if the lawyer’s efforts prove unsuccessful.” Id.

Endacott v. Int’l Hospitality, Inc., 910 So. 2d 915, 920-21 (Fla. 3d DCA
2005); see also Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So. 2d 412, 414
(Fla. 4th DCA 1980) (holding that if, following a reasonable investigation
of the facts, the attorney “has a reasonable, honest belief that [the] client
has a tenable claim, [the attorney] enjoys the same freedom of access to
the court as does [the] client. Any more stringent standard would
effectively stifle the peaceful resolution of disputes and deny the very
justice the courts are intended to administer.”).

   In the present case, the trial court found:

      [P]robable cause existed. The involvement of [Rivernider] as a
      principal to the acts of intimidation was inferrable [sic] from
      her statement to her tenant that the tenant did not realize who
      he was messing with and other evidence suggesting vandalism
      and intimidation by her agent [the son-in-law]. Also, though
      after the fact analysis is not the basis for probable cause, there
      are the judicial findings in the record which are in accord.

Based on this, Rivernider contends that the trial court relied on the county
court’s findings which were reversed on appeal. While the second
appellate proceeding indeed found that the affidavit failed to provide
probable cause to hold Rivernider in criminal contempt, the findings of the
judge holding Rivernider in contempt in the first proceeding were not
reversed on factual grounds. The appellate court merely found that the
procedural requirements of Rule 3.840(a) were not followed. In Burns v.
GCC Beverages, Inc., 502 So. 2d 1217, 1220 (Fla. 1986), the Florida
Supreme Court held that “the issuance of an arrest warrant by a
magistrate establishes a presumption of probable cause for purposes of an
action for malicious prosecution,” but “only if the defendant had the
opportunity to be heard by the magistrate on the issue of probable cause.”
See also Goldstein v. Sabella, 88 So. 2d 910, 911-12 (Fla. 1956) (finding
that a final judgment in favor of the plaintiff in a malicious prosecution
suit is conclusive on the issue of probable cause, even if reversed on
appeal, unless reversal is predicated on fraud, perjury, or other corrupt
means).

   In the first proceeding on the contempt charges before the county court,
Rivernider had the opportunity to testify, and the county court found that
she was not credible and that her manager acted with her knowledge and

                                      5
direction. Thus, she had the opportunity to contest the issue of probable
cause. This is not inconsistent with the second appellate panel’s finding
that the tenant’s affidavit was legally insufficient in demonstrating
probable cause that Rivernider knew of her son-in-law’s actions. The two-
judge majority looked solely to the affidavit and commented in the opinion
that it was not impossible for probable cause to be stated, particularly in
light of the first county court’s conclusions that probable cause was found
clearly and convincingly.

    Thus, because the county court found probable cause for contempt
based upon a hearing at which Rivernider was able to contest such a
finding, this provides a presumption of probable cause, which was not
overcome in any filings to counter the motion for summary judgment.
Given the more lenient standard applied to attorneys in bringing their
client’s claims, the trial court did not err in determining that the appellee
had probable cause to prosecute the criminal contempt. Because that
element of the malicious prosecution action failed, the court correctly
entered final summary judgment.

   Affirmed.

GROSS and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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