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Florida First DCA rules malicious prosecution claim not barred by litigation privilege simply because defendant in underlying case was original defendant rather than added to litigation

On January 17, 2018, in Inlet Beach Capital Investments v. The Enclave at Inlet Beach Owners Association, No. 1D16-2282, the Florida First DCA reversed a trial court’s dismissal of the plaintiff’s wrongful malicious complaint, which alleged that the defendants had prosecuted baseless foreclosure and declaratory actions against the plaintiffs. The trial court had dismissed the complaint based on the litigation privilege, which generally exempts judges, counsel, parties and witnesses from liability to an action for defamatory words published in the course of judicial proceedings, regardless of how false or malicious the statements may be, as long as the statements bear some relation to or connection with the subject of inquiry. On review, the First DCA quoted from the recent Florida Supreme Court decision in Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla. 2017) in which the court held that the litigation privilege does not bar the filing of a malicious prosecution claim that was based on adding, and later dropping, a party defendant to a civil suit because “malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege.” The First DCA determined that there was no valid reason to distinguish the instant case simply on the basis that defendants in the underlying litigation were originally included in the case rather than added after the commencement of the case.

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