       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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