Wolfe v. Foreman

128 So. 3d 67, 2013 WL 3724763, 2013 Fla. App. LEXIS 11230
CourtDistrict Court of Appeal of Florida
DecidedJuly 17, 2013
DocketNo. 3D10-3055
StatusPublished
Cited by7 cases

This text of 128 So. 3d 67 (Wolfe v. Foreman) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolfe v. Foreman, 128 So. 3d 67, 2013 WL 3724763, 2013 Fla. App. LEXIS 11230 (Fla. Ct. App. 2013).

Opinions

ROTHENBERG, J.

The issue in this appeal is 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. Because the law is clear that the litigation privilege applies to abuse of process, we affirm the trial court’s order granting judgment on the pleadings in favor of the defendants below as to that cause of action. Although the law is not as clear whether the litigation privilege also applies to a cause of action for malicious prosecution, we: (1) conclude that it does; and (2) affirm the trial court’s order finding that the litigation privilege also applies to a cause of action for malicious prosecution.

The operative facts are as follows. Richard Ferrrell and Harold Wolfe, who are partners in a limited liability company (“The Boatslip”), were involved in litigation in Monroe County over control of The Boatslip. The Monroe County litigation ultimately was settled.

Ferrell, who was dissatisfied with the outcome, sued his partners in the United States District Court for the Southern District of Florida (“the Federal case”). Ferrell’s New York counsel retained the ap-pellees, two Miami attorneys and their law firm (the “Miami Lawyers”), to serve as local counsel. The Miami Lawyers filed a complaint on January 6, 2007. On March 6, 2007, when the Miami Lawyers received documents from Wolfe demonstrating that the issues raised in the Federal case were raised and settled in the Monroe County suit, the Miami Lawyers immediately notified Ferrell that they could not ethically pursue his claims and must withdraw. The Miami Lawyers withdrew from the Federal case on March 13, 2007, after seeking and receiving permission from the Federal court to do so, as required under applicable rules. On September 13, 2007, six months after the Miami Lawyers withdrew, Ferrell’s complaint was dismissed and final judgment was entered. The United States Circuit Court affirmed the dismissal.

Wolfe, Harold E. Wolfe, Jr., P.A., and Harold E. Wolfe, Jr., Revocable Trust (collectively, “Wolfe”) the appellants here, sued the Miami Lawyers for abuse of process and malicious prosecution. The trial court granted the Miami Lawyers’ motion for judgment on the pleadings, finding 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.

LEGAL ANALYSIS

Our standard of review of the trial court’s judgment on the pleadings is de novo. Martinez v. Fla. Power & Light Co., 863 So.2d 1204, 1205 (Fla.2003); Walker v. Figarola, 59 So.3d 188, 189 (Fla. 3d DCA 2011). The litigation privilege was first recognized in Florida in 1907 to provide legal immunity for actions that occur in judicial proceedings. Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907). In Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994), the Florida Supreme Court extended the liti[69]*69gation privilege, already applicable to defamatory statements (slander and libel) and perjury, to all other torts so long as the act complained of occurs during and has some relation to the proceedings, stating:

[W]e find 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 such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.... [Participants [must] 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.

The Levin plaintiff alleged that the defendant law firm tortiously interfered with the plaintiffs relationship with its attorneys by listing the attorneys as witnesses in a separate case in order to prevent them from serving as attorneys in that case. Id. at 607. The Levin court held the attorneys’ conduct was shielded against the plaintiffs suit by Florida’s litigation privilege. Id.

Thirteen years after Levin, the Florida Supreme Court clarified 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), and reaffirmed that “[a]bsolute 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, 950 So.2d at 384 (quoting Levin, 639 So.2d at 608), see also DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013) (clarifying that, although not all statements made outside of the formal judicial process are protected by the litigation privilege, an absolute privilege applies to conduct occurring during the course of the proceedings).

Because the litigation privilege protects the judge, parties, counsel, and witnesses, Ange v. State, 98 Fla. 538, 123 So. 916 (1929), the issue we must resolve in this appeal is whether the acts alleged “oc-curredfed] during the course of a judicial proceeding.” Levin, 639 So.2d at 608.

ABUSE OF PROCESS

The elements of a cause of action for abuse of process under Florida law are: (1) an illegal, improper, or perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) damages to the plaintiff as a result. Valdes v. GAB Robins N. Am. Inc., 924 So.2d 862 (Fla. 3d DCA 2006).

Because it is undisputed that the acts relating to abuse of process complained of here occurred after the complaint was filed and were related to the judicial proceedings, the litigation privilege applies to Wolfe’s cause of action for abuse of process. See LatAm Invs., LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011) (holding that the litigation privilege applies to abuse of process claims where the conduct occurred during and was related to the judicial proceedings); Am. Nat’l Title & Escrow of Fla. v. Guarantee Title & Trust Co., 748 So.2d 1054, 1055 (Fla. 4th DCA 2000) (affirming the trial court’s order granting summary judgment in favor of the law firm in an action for abuse of process on the basis of absolute immunity and on the authority of Lev-in); see also LatAm, 88 So.3d at 243 (concluding that the application of the litigation privilege to a cause of action for abuse of process does not eliminate that cause of action because the privilege only [70]*70applies to acts taken during and related to the judicial proceedings). The trial court, therefore, correctly granted judgment on the pleadings in favor of the Miami Lawyers, and we affirm the trial court’s order as to Wolfe’s abuse of process claim.

MALICIOUS PROSECUTION

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. Valdes, 924 So.2d at 866 n. 1 (quoting

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Cite This Page — Counsel Stack

Bluebook (online)
128 So. 3d 67, 2013 WL 3724763, 2013 Fla. App. LEXIS 11230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfe-v-foreman-fladistctapp-2013.