EFTA00612144.pdf

Haddad, Tonja 8/26/2013 For Educational Use Only Wolfe v. Foreman, — So.3d — (2013) 38 Fla. L. Weekly D1540 2013 WL 3724763 Only the Westlaw citation is currently available. Itl Process ti-Nature and Elements in General NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE The elements of a cause of action for abuse of PERMANENT LAW REPORTS. UNTIL RELEASED, process are: (1) an illegal, improper, or IT IS SUBJECT TO REVISION OR WITHDRAWAL. perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the District Court of Appeal of Florida, illegal, improper. or perverted process; and (3) Third District. damages to the plaintiff as a result. Harold E. WOLFE, Jr., et al., Appellants, v. Jeffrey T. FOREMAN, et al., Appellees. No. 3D10-3055. I July 17, 2013. tit Process 4aPrivileges Synopsis Background: Partner in a limited liability company Litigation privilege barred abuse of process (LLC) brought abuse of process and malicious claim brought by one partner in limited liability prosecution action against attorneys and law firm who company (LLC) against attorneys and law firm briefly served as local counsel for second partner in the who briefly served as local counsel in federal LLC with respect to second partner's federal lawsuit lawsuit brought by a second partner in the LLC against the other partners in the LLC, including plaintiff. against the other partners, including plaintiff, The Circuit Court, Monroe County, David J. Audlin, Jr., where it was undisputed that the acts relating to J., granted attorneys' and law firm's motion for judgment abuse of process occurred after the federal on the pleadings. Plaintiff partner appealed. complaint was filed and were related to the judicial proceedings. Holdings: The District Court of Appeal, Rothenberg, J., held that: III litigation privilege barred the abuse of process claim, and Malicious Prosecution -SNature and Elements of Malicious (21 litigation privilege bared the malicious prosecution Prosecution in General claim. The elements for a malicious prosecution cause of action are that a judicial proceeding: (1) was Affirmed. commenced against the plaintiff; (2) was instigated by the defendant; (3) ended in favor Shepherd, C.J., filed specially concurring opinion. of the plaintiff; (4) was instigated with malice; (5) was commenced without probable cause; and (6) resulted in damage to the plaintiff. West Headnotes (4) WeStlawkieXi © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00612144  Haddad, Tonle 8/26/2013 For Educational Use Only Wolfe v. Foreman, — So.3d — (2013) 38 Fla. L. Weekly D1540 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: (I) conclude that it does; and Nl Malicious Prosecution (2) affirm the trial court's order finding that the litigation o}-Defenses privilege also applies to a cause of action for malicious prosecution. Litigation privilege barred malicious prosecution claim brought by one partner in The operative facts are as follows. Richard Ferrrell and limited liability company (LLC) against Harold Wolfe, who are partners in a limited liability attorneys and law firm who briefly served as company ("The Boatslip"), were involved in litigation in local counsel in federal lawsuit brought by a Monroe County over control of The Boatslip. The second partner in the LLC against the other Monroe County litigation ultimately was settled. partners, including plaintiff, despite contention that extension of the privilege to malicious Ferrell, who was dissatisfied with the outcome, sued his prosecution claims would effectively eliminate partners in the United States District Court for the the tort; acts complained of, namely the filing of Southern District of Florida ("the Federal case"). Ferrell's the complaint and brief prosecution of the action New York counsel retained the appellees, two Miami before attorneys and law firm learned that the attorneys and their law firm (the "Miami Lawyers"), to issues involved had already been litigated and serve as local counsel. The Miami Lawyers filed a withdrew, indisputably occurred during and complaint on January 6, 2007. On March 6, 2007, when were related to the judicial proceedings. 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 Attorneys and Law Firms applicable rules. On September 13, 2007, six months after Michael E. Allen, Tallahassee. for appellants. the Miami Lawyers withdrew, Ferrell's complaint was dismissed and final judgment was entered. The United Hunton & Williams LLP, and Marty Steinberg and States Circuit Court affirmed the dismissal. Jeffrey W. Gutchess; Ross & Girten, and Lauri Waldman Ross, Miami, for appellees. Wolfe, Harold E. Wolfe, Jr., P.A., and Harold E. Wolfe, Jr., Revocable Trust (collectively, "Wolfe") the appellants Before SHEPHERD, C.I., and CORTISIAS and here, sued the Miami Lawyers for abuse of process and ROTHENBERG, JJ. malicious prosecution. The trial court granted the Miami Lawyers' motion for judgment on the pleadings, finding Opinion that the pleadings demonstrated that the alleged wrongful actions were taken in the course of and related to ROTHENBERG, J. litigation and were thus absolutely privileged under Florida law. •1 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 LEGAL ANALYSIS (2) malicious prosecution. Because the law is clear that the litigation privilege applies to abuse of process, we Our standard of review of the trial court's judgment on affirm the trial court's order granting judgment on the the pleadings is de novo. Martinez v. Fla. Power & light WeStiawNeXI © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00612145  Haddad, Tonja 8/26/2013 For Educational Use Only Wolfe v. Foreman, — So.3d — (2013) 38 Fla. L. Weekly D1540 Co., 863 So.2d 1204, 1205 (Fla.2003); Walker v. protected by the litigation privilege, an absolute privilege Figarola, 59 So.3d 188, 189 (Fla. 3d DCA 2011). The applies to conduct occurring during the course of the litigation privilege was first recognized in Florida in 1907 proceedings). to provide legal immunity for actions that occur in judicial proceedings. Myers v. Hodges, 53 Fla. 197, 44 Because the litigation privilege protects the judge, parties, So. 357 (1907). In Levitt, Middlebrooks, Mabie, Thomas, counsel, and witnesses, Ange v. State, 98 Fla. 538, 123 Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d So. 916 (1929), the issue we must resolve in this appeal is 606, 608 (Fla.I994), the Florida Supreme Court extended whether the acts alleged "occurredledl during the course the litigation privilege, already applicable to defamatory of a judicial proceeding." Levin, 639 So.2d at 608. 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: •2 IWIe find that absolute ABUSE OF PROCESS immunity must be afforded to any in The elements of a cause of action for abuse of process act occurring during the course of a under Florida law are: (1) an illegal, improper, or judicial proceeding, regardless of perverted use of process by the defendant; (2) an ulterior whether the act involves a motive or purpose in exercising the illegal, improper, or defamatory statement or other perverted process; and (3) damages to the plaintiff as a tortious behavior such as the result. Valdes v. GAB Robins N. Am. Inc., 924 So.2d 862 alleged misconduct at issue, so long (Fla. 3d DCA 2006). as the act has some relation to the proceeding.... (Plarticipants [must] in Because it is undisputed that the acts relating to abuse be free to use their best judgment in of process complained of here occurred after the prosecuting or defending a lawsuit complaint was filed and were related to the judicial without fear of having to defend proceedings, the litigation privilege applies to Wolfe's their actions in a subsequent civil cause of action for abuse of process. See LatAm Invs., action for misconduct. LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d The Levitz plaintiff alleged that the defendant law firm DCA 2011) (holding that the litigation privilege applies to toniously interfered with the plaintiffs relationship with abuse of process claims where the conduct occurred its attorneys by listing the attorneys as witnesses in a during and was related to the judicial proceedings); Am. separate case in order to prevent them from serving as Nat'l Title & Escrow of Fla. v. Guarantee Title & Trust attorneys in that case. Id. at 607. The Levin court held the Co., 748 So.2d 1054, 1055 (Fla. 4th DCA 2000) attorneys' conduct was shielded against the plaintiff's suit (affirming the trial court's order granting summary by Florida's litigation privilege. Id. judgment in favor of the law firm in an action for abuse of process on the basis of absolute immunity and on the Thirteen years after Levitt, the Florida Supreme Court authority of Levitz ); see also LatAm, 88 So.3d at 243 clarified that "[tjhe litigation privilege applies across the (concluding that the application of the litigation privilege board to actions in Florida, both to common-law causes of to a cause of action for abuse of process does not action, those initiated pursuant to a statute, or of some eliminate that cause of action because the privilege only other origin," Echevarria, McCalla, Raymer, Barrett & applies to acts taken during and related to the judicial Frappier v. Cole, 950 So.2d 380, 384 (Fla.2007), and proceedings). The trial court, therefore, correctly granted reaffirmed that "ralbsolute immunity must be afforded to judgment on the pleadings in favor of the Miami Lawyers, any act occurring during the course of a judicial and we affirm the trial court's order as to Wolfe's abuse proceeding ... so long as the act has some relation to the of process claim. proceeding." Echevarria, 950 So.2d at 384 (quoting Levin, 639 So.2d at 608), see also DelMonico v. Traynor, — So.3d 38 Fla. L. Weekly S106, 2013 WL 535451 (Fla.2013) (clarifying that, although not all statements made outside of the formal judicial process are MALICIOUS PROSECUTION WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00612146  Haddad. Tonja 8/262013 For Educational Use Only Wolfe v. Foreman, — So.3d — (2013) 38 Fla. L. Weekly D1540 •3 PI The elements for a malicious prosecution cause of litigation privilege applies to all causes of actions, and action are that a judicial proceeding: (I) was commenced specifically articulated that its rationale for applying the against the plaintiff; (2) was instigated by the defendant; privilege so broadly was to permit the participants to be (3) ended in favor of the plaintiff; (4) was instigated with "free to use their best judgment in prosecuting or malice; (5) was commenced without probable cause; and defending a lawsuit without fear of having to defend their (6) resulted in damage to the plaintiff. Valdes, 924 So.2d actions in a subsequent civil action for misconduct," we at 866 n. 1 (quoting Alamo Rent—A—Car, Inc. v. Mancusi, are obligated to conclude that the act complained of 632 So.2d 1352, 1355 (Fla.I994)). here—the filing of the complaint—is protected by the litigation privilege. Thus, the trial court properly granted a In answering the question as to whether the litigation judgment on the pleadings for Wolfe's cause of action privilege applies to a cause of action for malicious against the Miami Lawyers for malicious prosecution. prosecution, we are guided and restrained by the broad language and application of the privilege articulated by •4 We are also unpersuaded by the argument that, unlike the Florida Supreme Court in Levin and Echevarria. In other torts, the application of the litigation privilege to the Levin, the Florida Supreme Court held that "absolute tort of malicious prosecution would effectively eliminate immunity must be afforded to any act occurring during malicious prosecution as a cause of action all together. In the course of a judicial proceeding ... so long as the act the instant case, the acts complained of were the actual has some relation to the proceeding." Levin, 639 So.2d at filing of the complaint and the brief prosecution of the 608. In Echevarria, the Court reiterated its broad case by the Miami Lawyers. These acts indisputably application of privilege "applies in all causes of action, occurred during and were related to the judicial statutory as well as common law." Echevarria, 950 So.2d proceedings, and are therefore protected by the litigation at 380-8I. privilege. Acts committed prior to the filing of the complaint may not, in some cases, enjoy the broad It is difficult to imagine any act that would fit more firmly protection of the privilege. For example, in Olson v. within the parameters of Levin and Echevarria than the Johnson, 961 So.2d 356, 360 (Fla. 2d DCA 2007), the actual filing of a complaint. The filing of a complaint, court found that the litigation privilege did not protect the which initiates the judicial proceedings, obviously three women who allegedly filed a police report falsely "occurs during the course of a judicial proceeding" and accusing Olson of stalking. Based on their accusations, -relates to the proceeding." Olson was arrested. At trial, Olson presented physical evidence that established that he was six miles away The Florida Supreme Court also used very broad language purchasing items at a department store during the time the in articulating the policy reasons or rationale for adopting three women claimed he was stalking Johnson. Olson was the litigation privilege and applying the litigation acquitted and sued the three women for malicious privilege to all actions taken during and related to the prosecution and abuse of judicial process. The Second judicial proceedings. The Florida Supreme Court District concluded that the litigation privilege did not explained that, "Just as participants in litigation must be apply "to a complaining witness such as Johnson who is free to engage in unhindered communication, so too must named as a defendant in a malicious prosecution action." those participants be free to use their best judgment in Id. at 360-61; see also Am. Nat'l Title & Escrow of Fla., prosecuting or defending a lawsuit without fear of 810 So.2d at 998 (rejecting a claim of absolute privilege having to defend their actions in a subsequent civil and finding that the defendants would enjoy at most a action for misconduct." Echevarria, 950 So.2d at 384 qualified privilege for allegedly providing law (quoting Levin. 639 So.2d at 608) (emphasis added). "It is enforcement with false information with the intent to the perceived necessity for candid and unrestrained injure the plaintiffs). communication in those proceedings, free of the threat of legal actions predicated upon those communications, that Additionally, the Florida Supreme Court in Levin noted is the heart of the rule. The nature of the underlying that while tortious conduct may be protected under the dispute simply does not matter." Echevarria, 950 So.2d at litigation privilege, 384. does not mean, however, that a remedy for a tdt Because the Florida Supreme Court has clearly and participant's misconduct is unavailable in Florida. On unambiguously stated, not once, but twice, that the the contrary, just as "Idemedies for perjury, slander, WeStlawNeXi © 2013 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00612147  Haddad, Tonle 8/26/2013 For Educational Use Only Wolfe v. Foreman, — So.3d — (2013) 38 Fla. L. Weekly D1540 and the like committed during judicial proceedings are Kenny Nachwalter predicted. left to the discipline of the courts, the bar association, and the state," Wright, 446 So.2d at 1164, other tortious The plaintiff alleges the Kenny Nachwalter law firm had a conduct occurring during litigation is equally duty to independently verify what it was told by its client susceptible to that same discipline. and lead counsel. That is not so. Endacott v. hiel Hospitality, Inc., 910 So.2d 915, 922 (Fla. 3d DCA 2005) Levitt, 639 So.2d at 608-09. (stating lawyers are entitled to rely on their client's representations of fact); United States v. Del Carpio- Accordingly, we affirm the trial court's order granting the Cotrina, 733 F.Supp. 95, 99 (S.D.Fla.1990) (stating Miami Lawyers' motion for judgment on the pleadings on ethical rules do not require lawyers to investigate client); Wolfe's causes of action against the Miami Lawyers for see also Baron v. Fieldstone, 581 So.2d 649, 650 (1991) abuse of process and malicious prosecution (concluding attorney fees were improperly assessed against the plaintiff's counsel where counsel acted in Affirmed. good faith based on his client's representations). On appeal, Plaintiff—Appellant seeks to direct our attention to the issue of whether the litigation privilege bars all actions for malicious prosecution. The tort of CORTIRAS, J., concurs. malicious prosecution is not applicable to the facts of this SHEPHERD, C.J., specially concurring. case because at least two essential elements of the cause of action are missing-malice and absence of probable The only remarkable thing about this case is its existence. cause. If there were a cause of action in this case, it might As the managing attorney of the Miami office of The be for "negligently" conducting a civil proceeding. Florida Bar explained to Mr. Wolfe (himself a licensed However, as this court has made clear, no such cause of Florida attorney), when he refused to accept staff action exists in this state. Chapman v. State, Dep't of counsel's initial rejection of his Bar complaint against the Health & Rehabilitative Servs., 517 So.2d 104, 106 (Fla. Kenny Nachwalter lawyers who brought the federal 3d DCA 1987) (citing Pokorny v. First Fed. Says. & Loan action, "the Florida rules governing attorney conduct ... Ass'n, 382 So.2d 678, 683 (Fla.1980)); Hudson v. Dykes, preclude an attorney from bringing a frivolous action. 402 So.2d 491, 493 (Fla. 1st DCA 1981). Nor, in any Once the attorneys learned of the true history of the case, were the Kenny Nachwalter lawyers negligent or litigation, they withdrew." Rather than approbation for abusive in any action they took in the case. They acted doing the right thing, the law firm and two of its attorneys honorably.' sadly have been rewarded with a summons and complaint. For the reasons expressed, I join in the affirmance of the •5 There is no material dispute about the facts of this judgment of the trial court in this case and the decision of case. The Kenny Nachwalter firm withdrew as local this court to award appellate attorneys' fees to counsel for counsel upon learning its client and lead counsel Kenny Nachwalter and the individual defendants. misrepresented or intentionally omitted to advise the firm's lawyers of dispositive information relating to the viability of a complaint the law firm filed in the United Parallel Citations States District Court at their behest.' The correctness of the law firm's decision was confirmed a few months later 38 Fla. L. Weekly D1540 when the United States District Court dismissed the case on the ground the omitted fact operated to bar the prosecution of the action; precisely the consequence Footnotes Lead counsel is a member of the New York bar. lie is not admitted to the Florida Bar or the United States District Court for the Southern District of Florida. and therefore could not file the complaint on his own. See U.S.D.C. Local Rule 4 (Appearances). WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00612148  Haddad, Ionia 8/26/2013 For Educational Use Only Wolfe v. Foreman, — So.3d — (2013) 38 Fla. L. Weekly D1540 2 In contrast, counsel who remained in the case, replacement local counsel. and the plaintiffs in the United States District Court. participated in a substantial payment of attorney fees and costs to Mr. Wolfe and his co-defendants in settlement of a Federal Rule of Civil Procedure I I in the United States Court of Appeals for the Eleventh Circuit after that court affirmed the dismissal of the federal suit. See Ferrell v. Durbin. 311 Fed.Appx. 253 (11th Cir.2009). Wolfe did not include the Kenny Nachwalter law firm and its attorneys in the Rule II motion and could not do so because they withdrew. It would seem peculiar, at best, to afford Mr. Wolfe a pathway in the courts of this state to accomplish what he rather clearly could not accomplish in the forum where the offending conduct is alleged to have occurred. End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works. WeStlawNeiti© 2013 Thomson Reuters. 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