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Malicious Prosecution Claims Are Not Barred by the Litigation Privilege

On February 9, 2017, the Florida Supreme Court issued and opinion in Debrincat v. Fischer, 42 Fla. Weekly S141a (February 9, 2017), holding that the claim of malicious prosecution that was based upon adding a party to a civil lawsuit is not barred by the litigation privilege in Florida.

The ruling clarified the muddy water and lack of clarity that existed in the split of authority between the Third District Court of Appeal and the Fourth District Court of Appeal.

The litigation privilege protects judges, parties, counsel, and witnesses from being sued for any act they perform which is required or permitted by law and that occurs during a judicial proceeding, so long as the act has some relation to the judicial proceeding.

Generally, malicious prosecution is the misuse of the legal machinery for an improper purpose. The tort is committed when a person, acting with malice and without probable cause, engages in conduct causing the commencement or continuation of a judicial proceeding against a person.

In the underlying claim, Richard and Jason Debrincat (collectively the “Debrincats”) filed a defamation lawsuit and later added Stephen Fischer as a defendant. Shortly after that, Fischer was dropped from the lawsuit. Fischer then commenced his malicious prosecution action against the Debrincats, contending that the Debrincats acted with malice toward him by pursuing the underlying suit without probable cause.

The Debrincats moved for a summary judgment based upon the litigation privilege, and the trial court ruled for the Debrincats. The trial court was appealed, and the Florida Fourth District Court of Appeal reversed the trial court and held that the litigation privilege does not protect the Debrincats from a malicious prosecution claim.

Florida has a long history of recognizing the claim of malicious prosecution. See Tatum Bros. Real Estate & Inv. Co. v. Watson, 109 So. 623, 626 (Fla. 1926). To prevail in a malicious prosecution action, a plaintiff 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.

  7. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

As a consumer rights advocate the claim of malicious prosecution is often asserted when a consumer has been wrongfully included in a lawsuit. Examples of this, include, but are not limited to, service of process upon the wrong person, commencing garnishment proceedings against the wrong person, and seeking to collect monies in a court action where the creditor is not permitted by law to do so.

Under Florida law, the tort of wrongful garnishment has the same elements as the tort of malicious prosecution. Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 844–45 (Fla. 4th DCA 2001); Iowa Mut. Ins. Co. v. Gulf Heating & Refrigeration Co., 184 So. 2d 705, 706 (Fla. 2d DCA 1966).

The Florida Supreme Court recognized that applying the litigation privilege in this instance against the Debrincats would eviscerate this long-established cause of action for malicious prosecution.

The Florida Supreme Court also explained that the Fourth District Court of Appeal was correct when they reasoned that “[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.” Id. at 1207. Further, the Florida Supreme Court also noted that other district courts throughout Florida have recognized that the litigation privilege does not act as a bar to a malicious prosecution claim. See Olson v. Johnson, 961 So. 2d 356, 360-61 (Fla. 2d DCA 2007); Wright v. Yurko, 446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984).

Those that have been wrongfully included as a defendant in a Florida action will be able to assert a claim for malicious prosecution and not be barred by the litigation privilege. The Florida Supreme Court has refused to hold that litigation privilege bars a claim for litigation privilege.

Sweeney Law, P.A. Regularly Handles Malicious Prosecution Claims

Brendan A. Sweeney, Esq., of Sweeney Law, P.A., The Florida Debt Warrior, regularly litigates malicious prosecution claims on behalf of consumers. If you have been wrongfully named as a defendant in a lawsuit, then please contact Sweeney Law, P.A. at 954.440.3993 immediately to protect your rights

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