           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

             Nos. 1D16-2282/1D16-2283/1D16-3833
                _____________________________

INLET BEACH CAPITAL
INVESTMENTS, LLC, and DAVID
PEARSON,

    Appellants,

    v.

THE ENCLAVE AT INLET BEACH
OWNERS ASSOCIATION, INC., a
Florida not for profit
corporation, BECKER &
POLIAKOFF, P.A., JOHN
TOWNSEND, JAY ROBERTS,
RAYMOND NEWMAN, JAMES G.
WALDSCHMIDT, MARIJANE
GLEESON WALDSCHMIDT,
RANDALL BROWN, DIANA TIBBS,
and ALAN MANCUSO,

    Appellees.
                  ___________________________

On appeal from the Circuit Court for Walton County.
Thomas R. Santurri, Judge.

                        January 17, 2018


WOLF, J.

    This appeal arises from three final orders dismissing with
prejudice appellants’ amended complaint in each case. We have
consolidated these cases into a single appeal, as appellants raise
the same issues in each case: whether the litigation privilege bars
their claims of malicious prosecution against appellees for filing
and maintaining allegedly baseless foreclosure and declaratory
actions against appellants, and whether each of the amended
complaints stated valid causes of action for malicious prosecution
and conspiracy to commit malicious prosecution. We find the
litigation privilege does not bar appellants’ claims, which state
valid causes of action for malicious prosecution and conspiracy to
commit malicious prosecution.

     The Florida Supreme Court recently addressed whether the
litigation privilege 1 can bar an otherwise valid claim for
malicious prosecution in Debrincat v. Fischer, 217 So. 3d 68 (Fla.
2017). In Debrincat, the court held that the litigation privilege
does not bar the filing of a malicious prosecution claim that was
based on adding, and later dropping, a party defendant to a civil
suit because “‘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.’” Id. at 70 (quoting Fischer v.
Debrincat, 169 So. 3d 1204, 1207 (Fla. 4th DCA 2015)). Appellees
assert that Debrincat should only apply in situations where a
party is added to the litigation.

    We see nothing in the language in Debrincat to support this
conclusion. Appellees offer no explanation as to why the
reasoning in Debrincat should not apply to the instant cases,
where appellants were the original defendants in the underlying


    1  The litigation privilege is an exemption that protects
judges, counsel, parties, and witnesses “‘from liability to an
action for defamatory words published in the course of judicial
proceedings, regardless of how false or malicious the statements
may be, as long as the statements bear some relation to or
connection with the subject of inquiry.’” Debrincat v. Fischer, 217
So. 3d 68, 69-70 (Fla. 2017) (quoting DelMonico v. Traynor, 116
So. 3d 1205, 1211 (Fla. 2013)).



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action. We hold that the litigation privilege is not an absolute bar
to appellants’ claims of malicious prosecution.

     Next we turn to whether appellants’ causes of action
properly stated claims for malicious prosecution and conspiracy
to commit malicious prosecution. The Florida Supreme Court has
explained that a cause of action asserting malicious prosecution
must establish the following 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 part
    of the present defendant; and (6) the plaintiff suffered
    damage as a result of the original proceeding.

Debrincat, 217 So. 3d 68 at 70 (emphasis added) (quoting Alamo
Rent–A–Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).

     In the instant case, the trial court was required to accept as
true all of the factual allegations made in the complaints. Andrew
v. Shands At Lake Shore, Inc., 127 So. 3d 1289 (Fla. 1st DCA
2013); Locker v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1127-
28 (Fla. 1st DCA 2010). In the complaints, appellants alleged that
the basis for appellees’ voluntary dismissal of the underlying
foreclosure action was appellees’ lack of a valid cause of action.
Documents attached to the complaints support this assertion.
Accordingly, at the motion to dismiss stage of the litigation,
appellants’ allegations were sufficient to establish that the
underlying action was ended in a bona fide termination in favor
of appellants. See Cohen v. Corwin, 980 So. 2d 1153, 1155 (Fla.
4th DCA 2008).

     Lastly, appellants’ complaints sufficiently allege malice
because the complaints alleged that appellees chose to maintain
the foreclosure suit against appellants for over a year after they

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were aware that they did not have a valid cause of action. See
Alamo Rent-A-Car, 632 So. 2d at 1357. While the attached
documents raise factual issues concerning appellees’ reason for
not dismissing the underlying foreclosure action sooner, the
documents as a whole do not directly contradict appellants’
assertion of maliciousness. 2

    In summation, the litigation privilege does not bar a
malicious prosecution action, and the trial court erred in
dismissing appellants’ malicious prosecution and conspiracy to
commit malicious prosecution claims. Accordingly, we REVERSE
and REMAND all three final orders for further proceedings
consistent with this opinion.

WINOKUR and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Bruce S. Rogow and Tara Campion of Bruce S. Rogow, P.A., Fort
Lauderdale; William S. Howell, Jr. of William S. Howell, Jr.,
P.A., Santa Rosa Beach; and Fred D. Bentley, Jr., pro hac vice, of
Bentley, Bentley & Bentley, Marietta, GA, for Appellants.

James K. Parker and Yvette R. Lavelle of Boyd Richards Parker
& Colonnelli, P.L., Miami, for Appellees Becker & Poliakoff, P.A.,
John Townsend, Jay Roberts, and Raymond Newman.

William K. Thames of Vernis & Bowling of Northwest Florida,

    2 “The inference of malice from the absence of probable cause
is not one of law but merely a presumption of fact which may be
rebutted. This is an inference which the jury is not required to
draw, and which it should not draw if other facts disclosed by the
evidence lead to a different conclusion.” Colonial Stores Inc., v.
Scarborough, 355 So. 2d 1181, 1185 (Fla. 1977).

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P.A., Pensacola, for Appellees The Enclave at Inlet Beach Owners
Association, Inc., James G. Waldschmidt, Marijane Gleeson
Waldschmidt, Randall Brown, Diana Tibbs, and Alan Mancuso.




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