DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STEPHEN FISCHER,

Appellant,

v.

RICHARD DEBRINCAT and JASON DEBRINCAT,

Appellees.

No. 4D14-1855

[ July 15, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Peter D. Blanc, Judge; L.T. Case No. 

2009CA015835XXXXMB.

John M. Jorgensen and S. Brian Bull of Scott, Harris, Bryan, Barra & 

Jorgensen, P.A., Palm Beach Gardens, for appellant.

Barry W. Taylor of Taylor & Taylor Law, P.A., Palm Beach Gardens, for 

appellees.

TAYLOR, J.

The issue presented in this appeal is whether the litigation privilege 

bars a claim for malicious prosecution. In appellant’s malicious 

prosecution action below, the trial court granted appellees’ motion for 

summary judgment and later entered final judgment against appellant. 

We reverse and hold that the litigation privilege cannot be applied to bar 

the filing of a claim for malicious prosecution where the elements of that 

tort are satisfied.

Appellees commenced a civil lawsuit against various defendants and 

later added appellant as a party defendant. In the underlying proceeding, 

appellees sued appellant for defamation, defamation per se, tortious 

interference, and conspiracy. Appellees later dropped appellant from the

underlying proceeding.

Appellant then brought the instant action for malicious prosecution 

against appellees, claiming that appellees acted with malice towards him 

in pursuing the underlying proceeding against him without probable 
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cause.

Appellees raised the litigation privilege as an affirmative defense in their 

operative answer.

Appellees eventually moved for summary judgment, arguing that the 

litigation privilege afforded them immunity for their conduct of joining 

appellant as a defendant in the underlying lawsuit. Appellees relied upon 

Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), a case holding that 

the litigation privilege applies to a cause of action for malicious 

prosecution. The trial court granted appellees’ motion for summary 

judgment and later entered a final judgment in their favor.

Appellant argues that the trial court improperly granted summary 

judgment based solely upon the litigation privilege. He contends that the 

tort of malicious prosecution is based upon the unfounded prior civil 

proceeding itself and not the acts taken in the course of that proceeding.

In response, appellees argue that the trial court correctly found that 

the litigation privilege precluded appellant’s action against them for 

malicious prosecution. Appellees contend that when they joined appellant 

as a defendant in the underlying lawsuit, they were protected by the 

litigation privilege because they were performing an “act required or 

permitted by law in the due course of the judicial proceedings or as 

necessarily preliminary thereto.”

The standard of review applicable to a summary judgment posing a 

pure question of law is de novo. Eco-Tradition, LLC v. Pennzoil-Quaker 

State Co., 137 So. 3d 495, 496 (Fla. 4th DCA 2014).

Malicious prosecution is a “very ancient” cause of action, one that has 

long been recognized by the Florida Supreme Court. See, e.g., Tatum Bros.

Real Estate & Inv. Co. v. Watson, 92 Fla. 278, 288, 109 So. 623, 626 (1926). 

To prevail in a malicious prosecution action, a plaintiff must establish the 

following six 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 
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part of the present defendant, and (6) the plaintiff suffered 

damage as a result of the original proceeding.

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

There is, however, some tension between the tort of malicious 

prosecution and the litigation privilege. Florida’s litigation privilege has 

its roots in Myers v. Hodges, 53 Fla. 197, 210, 44 So. 357, 361 (1907), in 

which our supreme court held that defamatory statements made in the 

course of a judicial proceeding are absolutely privileged if they are relevant 

to the proceeding, but are protected only by a qualified privilege—which 

can be overcome by a showing of malice—if they are irrelevant to the 

proceeding.

As a general proposition, the litigation privilege “extends to the 

protection of the judge, parties, counsel, and witnesses, and arises 

immediately upon the doing of any act required or permitted by law in the

due course of the judicial proceedings or as necessarily preliminary thereto.” 

Ange v. State, 98 Fla. 538, 541, 123 So. 916, 917 (1929) (emphasis added), 

receded from in part by Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla. 1992) 

(holding that “defamatory statements voluntarily made by private 

individuals to the police or the state’s attorney prior to the institution of 

criminal charges are presumptively qualifiedly privileged,” and receding 

from Ange to the extent it is inconsistent with that ruling) (footnotes 

omitted).

The Florida Supreme Court eventually extended the litigation privilege 

doctrine beyond its traditional application to defamatory statements, 

holding that “absolute immunity must be afforded to any act occurring 

during the course of a judicial proceeding, regardless of whether the act 

involves a defamatory statement or other tortious behavior . . . so long as 

the act has some relation to the proceeding.” Levin, Middlebrooks, Mabie, 

Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 

606, 608 (Fla. 1994). The supreme court reasoned: “Just as participants 

in litigation must be free to engage in unhindered communication, so too 

must those participants be free to use their best judgment in prosecuting 

or defending a lawsuit without fear of having to defend their actions in a 

subsequent civil action for misconduct.” Id.

The Florida Supreme Court later explained that “[t]he litigation privilege 

applies across the board to actions in Florida, both to common-law causes 

of action, those initiated pursuant to a statute, or of some other origin.” 

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 

384 (Fla. 2007).
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Relying upon the broad language of Levin and Echevarria, the Third 

District has held that the litigation privilege applies to a cause of action for 

malicious prosecution. See Wolfe, 128 So. 3d at 68-70. In Wolfe, the Third 

District affirmed a judgment on the pleadings in favor of the defendants 

on the plaintiff’s cause of action for malicious prosecution, concluding that 

the defendants’ acts of filing a complaint and briefly prosecuting a civil 

case were protected by the litigation privilege because those actions 

“indisputably occurred during and were related to” the judicial proceeding. 

Id. at 70-71. The court reasoned: “It is difficult to imagine any act that 

would fit more firmly within the parameters of Levin and Echevarria than 

the actual filing of a complaint. The filing of a complaint, which initiates 

the judicial proceedings, obviously ‘occurs during the course of a judicial 

proceeding’ and ‘relates to the proceeding.’” Id. at 70. The Third District 

was “also unpersuaded by the argument that, unlike other torts, the 

application of the litigation privilege to the tort of malicious prosecution 

would effectively eliminate malicious prosecution as a cause of action 

[altogether].” Id. at 70-71. The Third District believed that “[a]cts

committed prior to the filing of the complaint may not, in some cases, enjoy 

the broad protection of the privilege.” Id. at 71.

In our view, Wolfe went too far in its application of the litigation 

privilege. 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 malicious prosecution would be effectively 

abolished in Florida—or, at the very least, eviscerated beyond recognition.

The Florida Supreme Court has long recognized the viability of a cause 

of action for malicious prosecution. See, e.g., Burns v. GCC Beverages, 

Inc., 502 So. 2d 1217, 1218 (Fla. 1986); Adams v. Whitfield, 290 So. 2d 49, 

51 (Fla. 1974); Tatum Bros., 92 Fla. at 288, 109 So. at 626.

Moreover, other cases have recognized that the litigation privilege does 

not bar a malicious prosecution action. For example, in Wright v. Yurko, 

446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984), which was cited with 

approval in Levin, the Fifth District held that the litigation privilege did not 

bar a claim for malicious prosecution that was brought against the two 

underlying plaintiffs and their expert witness. While the Fifth District 

recognized that torts such as “perjury, libel, slander, defamation, and the 
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like” were not actionable when committed in connection with judicial 

proceedings, the court explained that “[t]he only private remedy in this 

context allowed or recognized is the ancient cause of action of malicious 

prosecution.” Id. at 1164-65 (emphasis added).

Similarly, in a post-Echevarria case, the Second District held that a 

plaintiff’s claim for malicious prosecution was not barred by the litigation 

privilege where the defendants allegedly made a false criminal complaint 

against the plaintiff. See Olson v. Johnson, 961 So. 2d 356 (Fla. 2d DCA 

2007). In an opinion authored by then-Judge Canady, the Second District 

emphasized the unique nature of malicious prosecution actions:

In relying on Fridovich, Johnson confuses the law of 

defamation—with which Fridovich deals—with the law of 

malicious prosecution—which is at issue in the instant case.

. . . There is no equivalent privilege available to a complaining 

witness . . . who is named as a defendant in a malicious 

prosecution action. Such a defendant must defend against a 

malicious prosecution claim by disputing an element or 

elements of the cause of action alleged or by raising an 

applicable affirmative defense.

Id. at 360-61 (emphasis added); see also Am. Nat’l Title & Escrow of Fla., 

Inc. v. Guarantee Title & Trust Co., 810 So. 2d 996, 998 (Fla. 4th DCA 2002) 

(reversing trial court’s dismissal of various claims, including malicious 

prosecution, where the plaintiffs alleged that the defendants conspired to 

maliciously give false information to law enforcement: “These allegations, 

if proved, would not be protected by the absolute litigation privilege which 

protected the law firm for doing things pursuant to court orders. They 

would enjoy at most a qualified privilege . . . .”).

To be sure, Echevarria contains broad language stating that the 

litigation privilege applies “in all causes of action, whether for commonlaw torts or statutory violations.” 950 So. 2d at 384. But this language 

could not have been intended “to sweep so broadly” as to provide absolute 

immunity from liability for malicious prosecution. Cf. DelMonico v. 

Traynor, 116 So. 3d 1205, 1208 (Fla. 2013) (“We hold that Florida’s 

absolute privilege, as this Court has developed the common law doctrine, 

was never intended to sweep so broadly as to provide absolute immunity 

from liability to an attorney for alleged defamatory statements the attorney 

makes during ex-parte, out-of-court questioning of a potential, nonparty 

witness in the course of investigating a pending lawsuit.”).
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As a practical matter, such a broad application of the litigation privilege 

would mean that a malicious prosecution claim would rarely, if ever, be 

actionable. Indeed, it is difficult to envision how a malicious prosecution 

claim would ever be actionable where the original proceeding was a civil 

lawsuit.

The Florida Supreme Court has declared that it “does not intentionally 

overrule itself sub silentio.” Puryear v. State, 810 So. 2d 901, 905 (Fla. 

2002). If the litigation privilege could be applied to bar a malicious 

prosecution action, this would mean that the Florida Supreme Court 

silently eviscerated the longstanding common law tort of malicious 

prosecution. Had the Florida Supreme Court truly meant for the litigation 

privilege to immunize conduct that would otherwise constitute malicious 

prosecution under the common law, one would have expected the court to 

say so explicitly.

Commencement or continuation of an original judicial proceeding is an 

element of malicious prosecution, a longstanding tort with ancient roots. 

It is unfathomable that the Florida Supreme Court intended to cloak the 

commencement or continuation of a judicial proceeding with absolute 

immunity when such conduct occurs as an element of the tort of malicious 

prosecution.

California has addressed this issue. Although California—like 

Florida—has an extraordinarily broad litigation privilege, the California 

Supreme Court has explained that the litigation privilege does not apply 

to the tort of malicious prosecution. See Silberg v. Anderson, 50 Cal.3d 

205, 212 (1990). Under California law, the litigation privilege is absolute 

in nature and applies to all torts “except malicious prosecution.” Id. at 

211-12, 215.

Malicious prosecution is sui generis because “[t]he essence of the tort 

of malicious prosecution is the misuse of legal machinery for an improper 

purpose.” Rushing v. Bosse, 652 So. 2d 869, 874 (Fla. 4th DCA 1995). 

“This tort has its own special elements and defenses.” Wright, 446 So. 2d 

at 1165. The wrongful act is committed when the tortfeasor—acting with 

malice and without probable cause—engages in conduct causing the 

commencement or continuation of a judicial proceeding against the 

plaintiff. An action for malicious prosecution—which is based as a matter 

of law on causing the commencement or continuation of an original

judicial proceeding—could never occur outside the context of litigation.

In short, we conclude that the litigation privilege cannot be applied to 

bar the filing of a claim for malicious prosecution. We reverse the 
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summary judgment, remand for further proceedings, and certify conflict 

with Wolfe.

Reversed.

MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.