By Abbey Kaplan and Marko Cerenko
In the recent case of Wolfe v. Foreman, the Third District Court of Appeals may have effectively eliminated malicious prosecution as a cause of action all together.  Was that the intention of the court?  Are defendants who were wrongfully sued no longer able to seek redress in the courts?  Or is Wolfe limited to its facts?

In Wolfe, Richard Ferrell sued his business partners in the Southern District of Florida after the partnership settled a business dispute in Monroe County, Florida and Ferrell was dissatisfied with the outcome.  Ferrel’s New York counsel retained a well-respected Miami law firm as local counsel to file the complaint.  After filing the suit, the Miami lawyers learned from opposing counsel that the issues raised in the federal suit had already been settled in the Monroe County litigation.  Accordingly, the Miami firm immediately notified Ferrell that they could not ethically pursue his claims and, after seeking and receiving permission from the federal court, they withdrew from the case approximately two months after filing the suit. Six months later, Ferrell’s complaint was dismissed and final judgment was entered. As a result, Ferrell’s former partners sued the Miami firm’s lawyers for malicious prosecution and abuse of process.  The trial court granted the lawyers’ motion for judgment on the pleadings, finding that the pleadings demonstrated that the alleged wrongful actions were taken during the course of litigation and were thereby absolutely privileged under Florida law.
The law in Florida is well-settled that a malicious prosecution action requires the occurrence of the following five elements: (1) a criminal or civil judicial proceeding  was commenced against the plaintiff; (2) the proceeding was instigated by the defendant; (3) the proceeding ended in favor of the plaintiff; (4) the proceeding was instigated with malice or without probable cause; and (5) the plaintiff suffered damages as a result of the defendant’s filing of the litigation.  Kalt v. Dollar Rent-A-Car, 422 So. 2d 1031 (Fla. 3d DCA 1982).  In answering the question as to whether the litigation privilege applies to a cause of action for malicious prosecution, the Third District Court affirmed the trial court’s order on the grounds that the litigation privilege applied to the filing of the complaint, which is an essential element to a claim for malicious prosecution.  Thus, it seems that the holding is Wolfe renders claims for malicious prosecution obsolete.  However, Wolfe is inconsistent with prior Florida case law, which confirmed that a cause of action for malicious prosecution remains alive and well in Florida.
The Court in Wolfe relied exclusively on two Florida Supreme Court cases, Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994) and Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007), for the proposition that absolute immunity extends to the filing of a lawsuit. However, the Third District Court of Appeal’s takes an overly broad approach to the language in those cases.
In Echevarria, the Florida Supreme Court  held that absolute immunity applies to any act occurring during the course of a judicial proceeding, whether the underlying claim constitutes a common law tort or a statutory violation, so long as the act has some relation to the proceeding.
In Levin, it was the actions that were taken by the defendant during the course of the bad faith litigation that were deemed protected by the litigation privilege; it was not the actual filing of the bad faith law lawsuit that was deemed protected.
The Supreme Court’s rulings in Levin and Echevarria are very clear that litigation immunity applies only to “any act occurring during the course of judicial proceedings.” Levin, 639 So.2d at 608 (emphasis added). The Court did not extend litigation immunity to the commencement of a proceeding; rather, the Court found that litigation immunity attaches to conduct during the course of litigation, after the filing of the complaint.
In Wolfe, the Court uses the language in Levin and Echevarria for the proposition that the filing of a complaint, which initiates the judicial proceedings, “occurs during the course of a judicial proceeding” and “relates to the proceeding.” However, this analysis extends the Levin decision beyond its intended scope and is an overly expansive reading of Levin and Echevarria as it equates “commencement of litigation” to “any act occurring during the course of judicial proceedings.”
In its analysis, the Levin court cited to Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984), which expressly permitted a malicious prosecution lawsuit to proceed based upon the filing of baseless litigation. As stated in Wright, and pursuant to Florida law, the commencement of a judicial proceeding is a necessary and required element of an action for malicious prosecution. Id. at 1165. Had Levin, intended to immunize the act of filing a lawsuit, Wright would not have been cited with approval. The citation to Wright in Levin manifests the court’s intention not to cloak the filing of a lawsuit with immunity as a privileged act “occurring during the course of a judicial proceeding.” Levin 639 So.2d at 608. Levin did not hold or imply that the absolute immunity for statements or actions occurring during a judicial proceeding extends to the act of filing the complaint that wrongfully initiated the proceeding.
This proposition is further supported in Boca Investors Group, Inc. v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002). In Judge Cope’s concurrence, he specifically states that “since the Levin decision cites Wright v. Yurko, it is evident that the tort of malicious prosecution is available.” Boca, 835 So.2d 275. Hence, the court acknowledged that an action for malicious prosecution is specifically excepted from the litigation privilege. Since the commencement of a judicial proceeding is a necessary and required element of an action for malicious prosecution it is clear that both, the Levin court, and the Boca court, in citing Wright, intended not to shroud the actual commencement of a judicial proceeding with litigation privilege immunity.
Limited to the facts of the case, Wolfe reaches the correct decision – that the Miami lawyers, who withdrew from the case upon learning that the claims were unsubstantiated by the facts, should not be subject to a claim for malicious prosecution.  Yet by applying absolute litigation immunity to the filing (the actual commencement) of the lawsuit, the Third District Court seems to be eliminating an entire cause of action, not just against attorneys but also against the plaintiffs in the underlying action, which may open the floodgates to frivolous litigation without recourse.