Wednesday, March 17, 2010

Filing Of Lis Pendens Not Basis For Tortious Interference Claim, Even When Done For Improper Purpose

In Fernandez v. Haber & Ganguzza, LLP (3D08-3195), the Third District held that "Although we do not agree with the actions taken by the Ganguzza law firm, we affirm because as a matter of law, the law firm is entitled to litigation immunity as to Fernandez’s tortious interference claim arising from the filing of the lis pendens in conjunction with pending litigation relating to the subject unit."

A lis pendens was filed for the purpose of stopping the sale of a condominium unit.  The Third District stated:
On appeal, Fernandez contends that the trial court improperly determined that absolute immunity applied and that there was sufficient record evidence of malice to overcome summary dismissal, though malice is not an element of proof to assert tortious interference. Although we believe that Ganguzza and his firm abused the legal process, we do not agree with Fernandez’s position.
In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007), 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, including tortious interference with a business relationship, so long as the act has some relation to the proceeding. See also Boca Investors Group, Inc. v. Potash, 835 So. 2d 273 (Fla. 3d DCA 2002). In the case before us, it is undisputed that the lis pendens filed by Ganguzza’s firm was filed during the course of the judicial proceeding brought by the Association against Fernandez. There was undisputed evidence in the record that the law firm was directed by the Association to prevent the sale, thus the firm was privileged in placing the lis pendens in connection with the action for injunctive relief. Any proceeding based on statements made in connection with a judicial proceeding are not actionable.


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