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Debrincat v. Fischer

Supreme Court of Florida

February 9, 2017

RICHARD DEBRINCAT, et al., Petitioners,
v.
STEPHEN FISCHER, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions Fourth District - Case No. 4D14-1855 (Palm Beach County)

          Paul Morris of the Law Offices of Paul Morris, P.A., Miami, Florida, for Petitioners

          John Marshall Jorgensen and Stephen Brian Bull of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, Florida, for Respondent

          Franklin Lewis Zemel, Susan Eileen Trench, and Ariel Rebecca Deray of Arnstein & Lehr LLP, Fort Lauderdale, Florida, for Amicus Curiae American Federated Title Corporation

          Philip Mead Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association

          POLSTON, J.

         The Fourth District Court of Appeal in Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015), held that the litigation privilege did not bar the filing of a malicious prosecution claim that was based upon the act of adding a party defendant to a civil suit. We have jurisdiction because the Fourth District also certified conflict with the Third District Court of Appeal's decision in Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013). See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fourth District's decision in Fischer and disapprove the Third District's decision in Wolfe to the extent it is inconsistent with our decision.

         I. BACKGROUND

         The original civil proceeding, which gave rise to Stephen Fischer's claim for malicious prosecution, was filed around November 2007 by Richard Debrincat and Jason Debrincat against a group of defendants. Stephen Fischer was later added as a party defendant in an amended complaint and was also named in a second amended complaint. In the underlying proceeding, the Debrincats sued Fischer for "defamation, defamation per se, tortious interference, and conspiracy." Fischer, 169 So.3d at 1205. The Debrincats "later dropped [Fischer] from the underlying proceeding." Id.

         On May 4, 2009, Fischer brought an action against the Debrincats for malicious prosecution, claiming that the Debrincats "acted with malice towards him in pursuing the underlying proceeding against him without probable cause." Id. The Debrincats "eventually moved for summary judgment, arguing that the litigation privilege afforded them immunity for their conduct of joining [Fischer] as a defendant in the underlying lawsuit." Id. The Debrincats relied upon the Third District's decision in Wolfe, "a case holding that the litigation privilege applies to a cause of action for malicious prosecution." Id. "The trial court granted the [Debrincats'] motion for summary judgment and later entered a final judgment in their favor." Id.

         On appeal, the Fourth District reversed and held "that the litigation privilege cannot be applied to bar the filing of a claim for malicious prosecution." Id. at 1209. The Fourth District explained that "[t]he Florida Supreme Court has long recognized the viability of a cause of action for malicious prosecution" and that, "[i]n [its] view, Wolfe went too far in its application of the litigation privilege." Id. at 1207. The Fourth District reasoned as follows:

Because the commencement or continuation of an original criminal or civil judicial proceeding is an act "occurring during the course of a judicial proceeding" and having "some relation to the proceeding, " malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege. If the litigation privilege could apply to bar a malicious prosecution action, this would mean that the tort of ...

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