Filed: Nov. 12, 2015
Latest Update: Nov. 12, 2015
Summary: WARNER , J. Appellant challenges a summary judgment holding that his malicious prosecution claim against appellee Epstein was barred by the litigation privilege. The trial court granted summary judgment based upon Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013), which had decided this issue just before the motion for summary judgment was heard. 1 However, after the trial court ruled, our court held to the contrary in Fischer v. Debrincat, 169 So.3d 1204 , 1209 (Fla. 4th DCA 2015),
Summary: WARNER , J. Appellant challenges a summary judgment holding that his malicious prosecution claim against appellee Epstein was barred by the litigation privilege. The trial court granted summary judgment based upon Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013), which had decided this issue just before the motion for summary judgment was heard. 1 However, after the trial court ruled, our court held to the contrary in Fischer v. Debrincat, 169 So.3d 1204 , 1209 (Fla. 4th DCA 2015), ..
More
WARNER, J.
Appellant challenges a summary judgment holding that his malicious prosecution claim against appellee Epstein was barred by the litigation privilege. The trial court granted summary judgment based upon Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013), which had decided this issue just before the motion for summary judgment was heard.1 However, after the trial court ruled, our court held to the contrary in Fischer v. Debrincat, 169 So.3d 1204, 1209 (Fla. 4th DCA 2015), and certified conflict with Wolfe to the supreme court. See also Rivernider v. Meyer, 174 So.3d 602, 604 (Fla. 4th DCA 2015) (same). As the issue is the same in this case, we hold that the litigation privilege does not bar a malicious prosecution cause of action where all the elements of malicious prosecution are present.
Epstein suggests that this case could be decided on a tipsy coachman analysis, as he alleges that all the elements of the cause of action were not present. However, the trial court specifically found that material issues of fact remained as to the elements of the claim. Based upon the facts presented and the inferences which may be drawn from those facts, we will not disturb the trial court's evaluation.
Just as in Fischer and Rivernider, we certify that this opinion conflicts with Wolfe.
Reversed and remanded for further proceedings.
TAYLOR and FORST, JJ., concur.
FootNotes
1. The trial court properly relied on Wolfe at the time, because that case was binding upon the trial court in the absence of interdistrict conflict. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992).
