Wolfe v. Foreman
2013 Fla. App. LEXIS 11230
| Fla. Dist. Ct. App. | 2013Background
- Ferrell (plaintiff in the federal suit) retained New York counsel who engaged two Miami attorneys (the "Miami Lawyers") as local counsel to file a federal complaint against Wolfe and others concerning control of The Boatslip.
- The Miami Lawyers filed the complaint on January 6, 2007, but on March 6, 2007 learned facts showing the claims had been raised and settled in prior Monroe County litigation.
- The Miami Lawyers promptly withdrew on March 13, 2007 with the federal court’s permission; the federal case was dismissed six months later and the dismissal affirmed on appeal.
- Wolfe (and related entities) sued the Miami Lawyers in Florida state court for abuse of process and malicious prosecution.
- The trial court granted the Miami Lawyers’ motion for judgment on the pleadings, concluding the litigation privilege barred both causes of action.
- The district court on appeal affirmed: it held the litigation privilege applies to abuse of process and, applying Florida Supreme Court precedent, also to malicious prosecution where the allegedly wrongful acts occurred in the course of and related to litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the litigation privilege bars an abuse of process claim | Wolfe argued the Miami Lawyers misused process and had improper motive, so privilege should not bar the claim | Miami Lawyers argued the complained acts occurred during and were related to litigation and thus are absolutely privileged | Privilege applies; abuse of process claim barred |
| Whether the litigation privilege bars a malicious prosecution claim | Wolfe argued malicious prosecution should not be entirely foreclosed by the privilege and that filing can be actionable | Miami Lawyers argued filing a complaint and related litigation acts occur during proceedings and fall within absolute privilege | Privilege applies; malicious prosecution claim barred |
| Whether application of the privilege effectively eliminates malicious prosecution | Wolfe suggested broad application would swallow the tort | Miami Lawyers relied on Levin/Echevarria policy protecting litigants’ candid actions | Court rejected that concern as bound by Supreme Court precedent; disciplinary or other remedies remain for misconduct |
| Whether pre-filing acts fall within the privilege | Wolfe pointed to cases where pre-filing false statements were actionable | Miami Lawyers distinguished post-filing, litigation-related acts from pre-filing conduct | Court noted privilege may not protect pre-filing misconduct (citing Olson), but here acts were post-filing and protected |
Key Cases Cited
- Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907) (earliest Florida recognition of litigation privilege)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994) (extended absolute litigation privilege to all torts occurring during and related to judicial proceedings)
- Echevarria v. McCalla, Raymer, Barrett & Frappier, 950 So.2d 380 (Fla. 2007) (affirmed broad, across-the-board application of litigation privilege)
- DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2013) (clarified scope of privilege for conduct during proceedings)
- LatAm Invs., LLC v. Holland & Knight, LLP, 88 So.3d 240 (Fla. 3d DCA 2011) (held litigation privilege applies to abuse of process claims when conduct occurred during and related to proceedings)
- Am. Nat’l Title & Escrow of Fla. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4th DCA 2000) (affirmed summary judgment on abuse of process ground based on absolute immunity)
- Olson v. Johnson, 961 So.2d 356 (Fla. 2d DCA 2007) (distinguished: litigation privilege did not protect pre-filing false accusations to police resulting in malicious prosecution)