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).

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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.

11th Circuit Reduces Requirements For Record Excerpt Program In Most Appeals

Today, the Eleventh Circuit reduced the requirements for its pilot record excerpt program. The program began as a pilot program in February 2006 in the Southern District of Alabama. Since that time, the program had slowly expanded to include other district courts within the jurisdiction of the Eleventh Circuit.

In March of this year, an email was sent to attendees of the Eleventh Circuit Appellate Practice Institute requesting comment on the pilot record program. At that time, the email stated, "it appear[ed] possible that we might be on the precipice of a modification — if not an elimination — of the program." For now, it seems the program has not been eliminated. However, it has certainly been modified. Thanks to Chet Kaufman for emailing news of the change.

Earlier today, the court posted a notice on the top of its website that states:

Reduced Requirements for Record Excerpts Now in Effect for Most Appeals. Please see Electronic Records on Appeal Program for additional information.

The page linked above, the Electronic Records on Appeal Program page, is copied below as it currently looks:

Most of these documents are in .pdf format. If you would like to download the Adobe Acrobat Reader, please visit adobe.com Problems downloading our .PDF files? Help files: .PDF or HTML format

In February 2006, with General Order 32, the Court implemented a pilot program in the Southern District of Alabama to determine whether the Court could conduct its business efficiently and without additional cost, while relieving certain district courts of the burden of providing paper copies of the record on appeal. Since that date, the program has been modified and expanded with General Order 33. At the present time, and upon request by the respective district courts, the Court has approved participation by all district courts in the Court’s Electronic Records on Appeal Program, either as an on-going program or a pilot program: Southern District of Alabama – for appeals filed on or after April 1, 2006 Middle District of Alabama – for appeals filed on or after November 1, 2007 Northern District of Alabama – for appeals filed on or after October 1, 2008 Northern District of Florida – for appeals filed on or after October 1, 2009 Middle District of Georgia – for appeals filed on or after October 1, 2010 Northern District of Georgia – for civil appeals filed on or after January 3, 2012; for criminal appeals, and appeals in cases filed pursuant to 28 U.S.C. § 2255, filed on or after November 1, 2012 Southern District of Georgia – for appeals filed on or after April 1, 2012 Southern District of Florida - for appeals filed on or after February 1, 2013 Middle District of Florida - for appeals filed on or after April 1, 2013 Parties in appeals where the district court is now filing only an electronic record on appeal must file an appendix in conformance with the “Appendix on Appeal” Requirements (June 2013) attached to General Order 39. In addition, parties will find more detailed information, including checklists and samples, in the Instructions for Preparing an Appendix (June 2013).

ELECTRONIC RECORDS ON APPEAL PROGRAM INFORMATION General Order 39 “Appendix on Appeal” Requirements (June 2013) Briefs Checklist - Electronic Records on Appeal Program (Revised June 2013) Instructions for Preparing an Appendix (June 2013) Appendix Checklist – Civil / Summary Judgment Cases (June 2013) Appendix Checklist – Criminal Cases (June 2013)

Supreme Court Reverses Florida Supreme Court in Takings Case

In Koontz v. St. Johns River Water Management District, the United States Supreme Court revered THIS Florida Supreme Court decision. In conclusion, the Supreme Court stated:

We hold that the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money. The Court expresses no view on the merits of petitioner’s claim that respondent’s actions here failed to comply with the principles set forth in this opinion and those two cases. The Florida Supreme Court’s judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion.

From the opinion, "ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined."

A complete listing of the opinions below, briefs, and timeline is available from the SCOTUSblog.

3rd DCA Reverses Itself Over Arbitration Award

The Daily Business Review has an article today titled "3rd DCA Reverses Itself Over Arbitration Award." A subscription is currently required to view the article. The article is about THIS opinion that released last Wednesday by the Third District. The one sentence opinion on rehearing vacated THIS six page opinion by Judge Fernandez. The earlier opinion included a 12 page dissent by Judge Salter. While the new unanimous opinion does not explain its reasoning, presumably Judge Salter's earlier dissent played a part. That dissent began:

I respectfully dissent. We should not engage in the very judicial proceedings that these international companies sought to avoid when they specified in their commission agreement that “[a]ny dispute or controversy arising in connection with this Agreement shall be subject to (and settled by) final and binding arbitration.” The threshold or “gatekeeper” determination regarding Mr. Rondon’s authority to initiate Ventus’s demand for arbitration, made here and now by the majority (after, and contrary to, the International Centre for Dispute Resolution Tribunal’s ruling on that very point), was a “controversy arising in connection with the agreement” that was properly heard and ruled upon by the tribunal and should not be revisited, much less nullified, by a Florida appellate court. The circuit court ruled in accordance with the deferential and extremely limited scope of review specified by the Florida and counterpart federal arbitration statutes (as interpreted by the Florida Supreme Court), such that the order confirming the Tribunal’s detailed and closely-reasoned award should be affirmed.

Florida Supreme Court Adopts New Rules On Professionalism For Lawyers

The Florida Supreme Court released a unanimous opinion today addressing the issue of professionalism. In Re: Code for Resolving Professionalism Complaints (SC13-688), the "Supreme Court of Florida Commission on Professionalism has requested that the Court adopt a Code for Resolving Professionalism Complaints which would include a structure to provide a process to more critically address professionalism issues in Florida." 

The Court noted the importance of professionalism and that "[s]urveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today."


The Court agreed with the Professionalism Committee that additional measures need to be taken and stated that "While we continue our educational the Professionalism Commission concluded that further integrated, affirmative, practical and active measures are now needed. We agree."

The Court did not, however, "attempt to create an entirely new code of 'professional' or 'unprofessional' conduct " and agreed it should not "at this time, attempt to codify an entirely new 'Code of Professionalism.'” Using the following existing rules and guidelines, the Court created one integrated place to look for professionalism rules and guidance: "(1) the Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; and (5) the decisions of the Florida Supreme Court."

Further "The Chief Judge of every circuit shall create a Local Professionalism Panel to receive and resolve professionalism complaints informally if possible. In the discretion of the Chief Judge, the Circuit Committee on Professionalism may be designated as the Local Professionalism Panel. The Chief Judge of each circuit is responsible for activating the respective committees."  

The Rules adopted by the Florida Supreme Court are found at Exhibit "A" to the opinion below.

In Re Code for Resolving Professionalism Complaints (SC13-688)

Court Cannot Read More Into Statute Than Plain Language Dictates (In This Case Verification Requirements)

In U.S. Bank v. Wanio-Moore (5D12-1746), the Fifth District reversed a trial court's order dismissing a complaint. The trial court dismissed the foreclosure complaint because the verification on the complaint did not provide the position of the person that signed the verification. However, the Fifth District reversed and held that "the rule does not require any information about the signer’s positional authority, and a court cannot “read more into [rule 1.110(b)] than its plain language dictates."

The opinion can be viewed HERE.

Florida Supreme Court Clarifies You Do Not Get Five Extra Days When Responding To A Proposal For Settlement

The Florida Supreme Court issued THIS opinion today and amended the Florida Rules of Civil Procedure to clarify that the additional five days allowed to respond to a filing/pleading served by email or mail does not apply when the pleading/email is a proposal for settlement. Therefore, a party has thirty days to respond to a proposal for settlement (not thirty-five).

Florida Supreme Court Reverses Decision That Found Class Action Waivers Unconscionable

In McKenzie Check Advance of Florida, LLC v. Betts (SC11-514), the Florida Supreme Court reversed a decision of the Fourth District Court of Appeal that determined a class action waiver provision violated Florida public policy. 

After the Fourth District published its opinion, "the United States Supreme Court issued its decision in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1744 (2011), addressing the issue of whether the Federal Arbitration Act (FAA) 'prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.'” In Concepcion, the Supreme Court concluded the California public policy prohibiting class action waivers was preempted by the Federal Arbitration Act. 

In McKenzie, the Florida Supreme Court stated 

Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy. Accordingly, we quash the Fourth District’s decision below. We decline to answer the certified question because it is moot in light of Concepcion. In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.

Justice Pariente wrote the opinion for the court. Justice Quince, Justice Canady, Justice Labarga, and Justice Perry concurred. Chief Justice Polston and Justice Lewis concurred in result only.

The Florida Supreme Court's opinion can be viewed HERE.  The Fourth District's opinion, that is now quashed, can be viewed HERE.

Apostrophe-Challenged

In Bradshaw v. Boynton-JCP Associates (4D11-4242), the court reversed an order awarding attorneys fees based upon an offer of judgment because the terms of the offer were not clear. Specifically, the court stated that the offer was "apostrophe-challenged." Regarding the offer in this case, the court stated:

The offer, entitled “Defendant’s Joint Proposal for Settlement,” also appears to have been adopted from a form without sufficient editing; it requires “Plaintiff’(s)” to “execute a stipulation,” and “Plaintiff(s)” to “execute a general release of “Defendant(s).”

The rule requires that “the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Therefore, the order awarding fees in this case was reversed.

The opinion can be viewed HERE.