Malicious Prosecution

By Derek Jorgensen, Esq.


       Like a zombie on The Walking Dead, the tort of malicious prosecution, once considered dead, has been awoken from its grave by the Fourth District Court of Appeals in Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015). Our firm represented the plaintiff, Stephen Fischer, who was the subject of this appeal when he was wrongfully sued for defamation.

       The tort of malicious prosecution has dated back as early as the tenth century in English legal history. It was developed as a means of redress against those that were wrongfully abused by the courts. Generally, a claim of malicious prosecution will lie when a party intentionally and maliciously pursues a legal action that was brought without probable cause and ultimately dismissed in favor of the victim of the malicious prosecution.

       The State of Florida has long recognized this very ancient cause of action; however, there has been a growing tension between malicious prosecution and the litigation privilege that has taken the bite out of malicious prosecution actions. The litigation privilege is given to judges, parties, attorneys, and witnesses. It permits defamatory statements made in the “due course of proceedings” to be absolutely privileged if said statements are relevant to the proceeding. Malicious prosecution was weakened when the privilege was extended by the Supreme Court of Florida in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mithcell, P.A. v. United States Fire Ins., 639 So.2d 606 (Fla. 1994) to include “any act occurring during the course of a judicial proceeding….so long as the act has some relation to the proceeding.”

       The broad language of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A, led to Wolfe v. Foreman, 128 So.3d 67 (Fla. 3rd DCA 2013), which effectively drove a stake through the claim of malicious prosecution by extending the litigation privilege to the actual filing of the complaint. By expanding the privilege to the complaint itself, a claim for malicious prosecution would likely never be actionable. Fischer reversed this trend by summoning the tort of malicious prosecution to frighten those that wrongfully abuse the court systems; noting that Wolfe effectively abolished malicious prosecution in Florida, or at the very least, left it “eviscerated beyond recognition.”

       The Fourth District Court of Appeals certified the conflict in Fischer with Wolfe, and our firm will likely argue in front of the Florida Supreme Court where the Court will determine if malicious prosecution will remain a cause of action or be sent back to its grave and put to rest.