AGM Investors, LLC v. Business Law Group, P.A.
219 So. 3d 920
| Fla. Dist. Ct. App. | 2017Background
- Glendale Villas Condominium Association hired LM Funding, which retained Business Law Group to collect unpaid unit assessments and enforce statutory liens.
- LL 194 Investors failed to pay assessments and taxes; AGM bought the unit at a tax-deed sale and received a tax deed in April 2010, which extinguished preexisting assessment liens.
- Business Law Group recorded five claims of lien (one before the tax deed, four after), despite AGM notifying them the tax deed extinguished the lien; AGM filed quiet title and contested the liens and obtained judgment quieting title against the association.
- Business Law Group withdrew as counsel for the association after AGM asserted third-party tort claims against it, but later recorded the fourth and fifth claims of lien and filed foreclosure on the lien.
- AGM sued Business Law Group for abuse of process, malicious prosecution, slander of title, and injurious falsehood; Business Law Group moved for summary judgment asserting the absolute litigation/judicial proceedings privilege for all five lien filings.
- Trial court granted summary judgment for Business Law Group as to all five liens; the Second District affirmed as to the first three but reversed as to the fourth and fifth because genuine factual disputes existed about whether those filings were "necessarily preliminary" to contemplated litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filings of the fourth and fifth claims of lien are protected by the absolute litigation (judicial proceedings) privilege | The fourth and fifth lien filings were not "necessarily preliminary" to litigation because foreclosure was already pending, title had been quieted, Business Law Group had withdrawn as counsel, and no good-faith contemplation of new litigation existed | The lien filings were acts preliminary to judicial enforcement of the association’s lien and thus absolutely privileged | Reversed summary judgment as to the fourth and fifth liens; factual disputes (contemplation of future litigation and counsel’s role after withdrawal) preclude deciding privilege as a matter of law |
| Whether the absolute privilege applies categorically to all acts preliminary to litigation | N/A (implicit: plaintiff argues limits should apply where future litigation was not in good faith contemplated) | The privilege covers acts necessarily preliminary to judicial proceedings | Court reaffirmed that privilege covers acts "necessarily preliminary," but requires factual predicate showing litigation was contemplated in good faith; summary judgment improper here |
| Whether counsel’s withdrawal severs privilege protection for later filings | Counsel’s withdrawal undermines the claim that later filings were on behalf of the association and thus preliminary to litigation | Later filings remain privileged because they relate to the same lien enforcement subject matter | Court held withdrawal raises factual issue whether Business Law Group acted as counsel for those later filings; summary judgment inappropriate |
| Whether absolute privilege was the proper ground for summary judgment (versus qualified privilege or malice issues) | N/A (plaintiff emphasizes unresolved issues) | Absolute privilege barred all tort claims; movant bore initial burden on privilege | Court limited decision to absolute privilege issue; noted Business Law Group did not carry its burden to show absence of factual disputes or address malice; remanded for further proceedings |
Key Cases Cited
- Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) (litigation privilege extends beyond defamation to other torts)
- DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013) (discussion of litigation/judicial proceedings privilege and limits)
- Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992) (absolute privilege for acts "necessarily preliminary" to judicial proceedings)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) (policy basis for absolute immunity during judicial proceedings)
- Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997) (absolute privilege applied to statutorily required prelitigation notice)
- Donohoe Constr. Co. v. Mt. Vernon Assocs., 369 S.E.2d 857 (Va. 1988) (filing of mechanic's lien is prerequisite to suit to enforce it)