FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Nos. 1D16-2282/1D16-2283/1D16-3833

_____________________________

INLET BEACH CAPITAL 

INVESTMENTS, LLC, and DAVID 

PEARSON,

Appellants,

v.

THE ENCLAVE AT INLET BEACH 

OWNERS ASSOCIATION, INC., a 

Florida not for profit 

corporation, BECKER &

POLIAKOFF, P.A., JOHN 

TOWNSEND, JAY ROBERTS,

RAYMOND NEWMAN, JAMES G.

WALDSCHMIDT, MARIJANE 

GLEESON WALDSCHMIDT,

RANDALL BROWN, DIANA TIBBS,

and ALAN MANCUSO,

Appellees.

___________________________

On appeal from the Circuit Court for Walton County.

Thomas R. Santurri, Judge.

January 17, 2018

WOLF, J.

This appeal arises from three final orders dismissing with 

prejudice appellants’ amended complaint in each case. We have 
2

consolidated these cases into a single appeal, as appellants raise 

the same issues in each case: whether the litigation privilege bars 

their claims of malicious prosecution against appellees for filing 

and maintaining allegedly baseless foreclosure and declaratory 

actions against appellants, and whether each of the amended 

complaints stated valid causes of action for malicious prosecution 

and conspiracy to commit malicious prosecution. We find the 

litigation privilege does not bar appellants’ claims, which state 

valid causes of action for malicious prosecution and conspiracy to 

commit malicious prosecution.

The Florida Supreme Court recently addressed whether the 

litigation privilege1 can bar an otherwise valid claim for 

malicious prosecution in Debrincat v. Fischer, 217 So. 3d 68 (Fla. 

2017). In Debrincat, the court held that the litigation privilege 

does not bar the filing of a malicious prosecution claim that was 

based on adding, and later dropping, a party defendant to a civil 

suit because “‘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.’” Id. at 70 (quoting Fischer v. 

Debrincat, 169 So. 3d 1204, 1207 (Fla. 4th DCA 2015)). Appellees 

assert that Debrincat should only apply in situations where a 

party is added to the litigation.

We see nothing in the language in Debrincat to support this 

conclusion. Appellees offer no explanation as to why the 

reasoning in Debrincat should not apply to the instant cases, 

where appellants were the original defendants in the underlying 

 1 The litigation privilege is an exemption that protects 

judges, counsel, parties, and witnesses “‘from liability to an 

action for defamatory words published in the course of judicial 

proceedings, regardless of how false or malicious the statements 

may be, as long as the statements bear some relation to or 

connection with the subject of inquiry.’” Debrincat v. Fischer, 217 

So. 3d 68, 69-70 (Fla. 2017) (quoting DelMonico v. Traynor, 116 

So. 3d 1205, 1211 (Fla. 2013)).
3

action. We hold that the litigation privilege is not an absolute bar 

to appellants’ claims of malicious prosecution.

Next we turn to whether appellants’ causes of action 

properly stated claims for malicious prosecution and conspiracy 

to commit malicious prosecution. The Florida Supreme Court has 

explained that a cause of action asserting malicious prosecution 

must establish the following elements:

(1) an original criminal or civil judicial proceeding 

against the present plaintiff was commenced or 

continued; (2) the present defendant was the legal cause 

of the original proceeding against the present plaintiff 

as the defendant in the original proceeding; (3) the 

termination of the original proceeding constituted a bona 

fide termination of that proceeding in favor of the present 

plaintiff; (4) there was an absence of probable cause for 

the original proceeding; (5) there was malice on the part 

of the present defendant; and (6) the plaintiff suffered 

damage as a result of the original proceeding.

Debrincat, 217 So. 3d 68 at 70 (emphasis added) (quoting Alamo 

Rent–A–Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).

In the instant case, the trial court was required to accept as 

true all of the factual allegations made in the complaints. Andrew 

v. Shands At Lake Shore, Inc., 127 So. 3d 1289 (Fla. 1st DCA 

2013); Locker v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1127-

28 (Fla. 1st DCA 2010). In the complaints, appellants alleged that 

the basis for appellees’ voluntary dismissal of the underlying 

foreclosure action was appellees’ lack of a valid cause of action. 

Documents attached to the complaints support this assertion. 

Accordingly, at the motion to dismiss stage of the litigation, 

appellants’ allegations were sufficient to establish that the 

underlying action was ended in a bona fide termination in favor 

of appellants. See Cohen v. Corwin, 980 So. 2d 1153, 1155 (Fla. 

4th DCA 2008).

Lastly, appellants’ complaints sufficiently allege malice 

because the complaints alleged that appellees chose to maintain 

the foreclosure suit against appellants for over a year after they 
4

were aware that they did not have a valid cause of action. See

Alamo Rent-A-Car, 632 So. 2d at 1357. While the attached 

documents raise factual issues concerning appellees’ reason for 

not dismissing the underlying foreclosure action sooner, the 

documents as a whole do not directly contradict appellants’ 

assertion of maliciousness.2

In summation, the litigation privilege does not bar a 

malicious prosecution action, and the trial court erred in 

dismissing appellants’ malicious prosecution and conspiracy to 

commit malicious prosecution claims. Accordingly, we REVERSE

and REMAND all three final orders for further proceedings 

consistent with this opinion.

WINOKUR and JAY, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Bruce S. Rogow and Tara Campion of Bruce S. Rogow, P.A., Fort 

Lauderdale; William S. Howell, Jr. of William S. Howell, Jr., 

P.A., Santa Rosa Beach; and Fred D. Bentley, Jr., pro hac vice, of 

Bentley, Bentley & Bentley, Marietta, GA, for Appellants.

James K. Parker and Yvette R. Lavelle of Boyd Richards Parker 

& Colonnelli, P.L., Miami, for Appellees Becker & Poliakoff, P.A., 

John Townsend, Jay Roberts, and Raymond Newman.

William K. Thames of Vernis & Bowling of Northwest Florida, 

 2 “The inference of malice from the absence of probable cause 

is not one of law but merely a presumption of fact which may be 

rebutted. This is an inference which the jury is not required to 

draw, and which it should not draw if other facts disclosed by the 

evidence lead to a different conclusion.” Colonial Stores Inc., v. 

Scarborough, 355 So. 2d 1181, 1185 (Fla. 1977).
5

P.A., Pensacola, for Appellees The Enclave at Inlet Beach Owners 

Association, Inc., James G. Waldschmidt, Marijane Gleeson 

Waldschmidt, Randall Brown, Diana Tibbs, and Alan Mancuso.