Pace v. Bank of New York Mellon Trust Co.
224 So. 3d 342
| Fla. Dist. Ct. App. | 2017Background
- Bank filed a foreclosure against Trust-owned rental property and served tenants, the trustee (Pace), and others.
- Trustee filed an answer and a three-count counterclaim alleging: (1) tortious interference with business relationships (process server’s statements and filing the suit), (2) fraud (lack of standing and false filings), and (3) abuse of process/malicious prosecution.
- Bank moved for summary judgment asserting the litigation privilege (absolute immunity) as an affirmative defense to all counterclaims; the trial court granted summary judgment and dismissed all counts with prejudice.
- Trustee appealed the dismissal of all three counts; the Fifth DCA reviewed whether the litigation privilege bars each claim.
- The court affirmed dismissal of counts two (fraud) and three (abuse of process/malicious prosecution) but reversed as to count one to the extent it alleged tortious interference based on the process server’s extrajudicial statements to tenants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether litigation privilege (absolute immunity) bars tortious interference claim based on filing suit | Filing the foreclosure and related acts caused interference; privilege should not shield wrongful loss of rents | Filing the foreclosure is privileged and bars interference claims based on the filing | Filing the complaint is protected by absolute immunity; but not all alleged acts (see below) |
| Whether litigation privilege bars tortious interference based on process server’s statements to tenants | Statements intimidated tenants, induced nonpayment/holdover; not privileged because not part of judicial process | All statements were part of serving process and thus privileged | Process server’s alleged comments were unnecessary to effectuate service and are not covered by absolute immunity; summary judgment on that portion reversed and remanded |
| Whether litigation privilege bars fraud claim alleging lack of standing and false affidavits | Bank knowingly filed false documents and lacked standing; privilege should not shield fraudulent filings | Litigation privilege provides absolute immunity for statements/filings in judicial proceedings | Privilege applies; fraud count affirmed dismissed |
| Whether malicious prosecution/abuse of process claim may be maintained as a counterclaim in the same proceeding | Filing was malicious and frivolous; claim should be allowed | Malicious-prosecution claims require termination in favor of plaintiff and are barred as a counterclaim in the original proceeding | Dismissed: litigation privilege and procedural rule (malicious prosecution cannot be asserted as a counterclaim in the underlying proceeding) |
Key Cases Cited
- DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2013) (articulates elements and scope of litigation privilege)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994) (absolute immunity for filing suit shields tortious interference claims based on the filing)
- Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) (litigation privilege covers preliminary acts necessary to litigation)
- Matthews v. U.S. Bank, Nat'l Ass'n, 197 So.3d 1140 (Fla. 4th DCA 2016) (process server need only inform recipient that papers contain a lawsuit; extrajudicial comments may exceed service scope)
- AGM Invs., LLC v. Bus. Law Grp., P.A., 219 So.3d 920 (Fla. 2d DCA 2017) (litigation privilege protects conduct necessarily preliminary to judicial proceedings)
- Debrincat v. Fischer, 217 So.3d 68 (Fla. 2017) (clarifies malicious prosecution elements and limits on using that claim within the original proceeding)