Wednesday, July 17, 2013

Litigation Client Privilege Applies When Defending Malicious Prosecution & Abuse of Process Claims

In Wolfe v. Foreman, et al (3D10-3055), the Third District addressed the applicability of the litigation client privilege when defending a lawsuit asserting claims for abuse of process and malicious prosecution. The court held:
Because the law is clear that the litigation privilege applies to abuse of process, we affirm the trial court’s order granting judgment on the pleadings in favor of the defendants below as to that cause of action. Although the law is not as clear whether the litigation privilege also applies to a cause of action for malicious prosecution, we: (1) conclude that it does; and (2) affirm the trial court’s order finding that the litigation privilege also applies to a cause of action for malicious prosecution.
The court provided an analysis of the relevant facts, which can be read in the opinion. However, the court also provided the elements of the causes of action, which could be useful to some, and copied below:

The elements of a cause of action for abuse of process under Florida law are: (1) an illegal, improper, or perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) damages to the plaintiff as a result. Valdes v. GAB Robins N. Am. Inc., 924 So. 2d 862 (Fla. 3d DCA 2006).


The elements for a malicious prosecution cause of action are that a judicial proceeding: (1) was commenced against the plaintiff; (2) was instigated by the defendant; (3) ended in favor of the plaintiff; (4) was instigated with malice; (5) was commenced without probable cause; and (6) resulted in damage to the plaintiff. Valdes, 924 So. 2d at 866 n.1 (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).
Judge Rothenberg wrote the court's opinion and was jointed by Chief Judge Shepherd and Judge Cortinas. Chief Judge Shepherd wrote an opinion specially concurring in the majority opinion.