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Florida Second DCA reverses trial court's summary judgment in abuse of process case against law firm, holds that defendant's litigation privilege may not apply

On April 19, 2017, in AGM Investors v. Business Law Group, No. 2D14-4704, the Florida Second DCA reversed the trial court’s summary judgment in an abuse of process case against a law firm, holding that the ground for the summary judgment, the defendant’s litigation privilege, might not apply depending on the unresolved facts of the case. The plaintiff had filed the complaint for abuse of process and other torts after the defendants filed multiple liens against the plaintiff for unpaid assessments on a condominium that the plaintiff had purchased at a public auction. The unpaid assessments and real estate tax debts had been incurred by the previous owner and were extinguished by the issuance of a tax deed to the plaintiff following the public auction. Citing DelMonico v. Traynor, 116 So. 3d 1205, 1211-12 (Fla. 2013), the Second DCA noted that the litigation privilege is an absolute privilege that applies to statements “made in the course of judicial proceedings,” so long as the conduct has “some relation to or connection with the subject of inquiry.” Florida courts have applied the privilege not only to conduct undertaken while litigation is ongoing but also to conduct that is "necessarily preliminary" to judicial proceedings. The Second DCA determined that the trial court rightly concluded that the first three claims of lien filed by the defendant were necessarily preliminary to any lien foreclosure proceedings, and hence privileged, but found that the record was silent with regard to why the fourth and fifth claims, which were filed while the proceeding on the third claim was ongoing, were necessarily preliminary to any litigation since no facts before the court suggested that any new and separate action to enforce those claims was contemplated when they were filed. The Second DCA noted that although no Florida court has addressed the question, it is well-accepted elsewhere that tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration.

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