Pace v. Bank of New York , 224 So. 3d 342 ( 2017 )


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  •          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    WILLIAM E. PACE, TRUSTEE
    OF THE EARL H. PACE
    IRREVOCABLE TRUST,
    Appellant,
    v.                                                Case No. 5D16-748
    BANK OF NEW YORK MELLON TRUST
    COMPANY NATIONAL ASSOCIATION
    F/K/A BANK OF NEW YORK TRUST
    COMPANY, N.A AS SUCCESSOR TO
    JPMORGAN CHASE BANK, N.A.,
    AS TRUSTEE FOR RESIDENTIAL ASSET
    MORTGAGE PRODUCTS, ETC.,
    Appellee.
    ________________________________/
    Opinion filed August 11, 2017
    Appeal from the Circuit Court
    for Brevard County,
    Lisa Davidson, Judge.
    Dennis E. Winesett, of Law Office of Dennis
    E. Winesett, Orlando, for Appellant.
    Diana B. Matson and Joshua R. Levine, of
    Baker, Donelson, Bearman, Caldwell &
    Berkowitz, PC, Fort Lauderdale, and
    Michael W. Smith, of Baker, Donelson,
    Bearman, Caldwell & Berkowitz, PC,
    Orlando, for Appellee.
    BERGER, J.
    William E. Pace (Trustee), trustee of the Earl H. Pace Irrevocable Trust (Trust),
    appeals the trial court's order granting summary judgment on Trustee's three-count
    counterclaim in favor of Bank of New York Mellon Trust Co., N.A. (Bank), acting as trustee
    for Residential Asset Mortgage Products.         The order granting summary judgment
    dismissed the entire counterclaim with prejudice and without leave to amend. We affirm
    the dismissal of counts two1 and three.2 However, because the trial court erred in finding
    that Trustee's counterclaim, alleging tortious interference, with a business relationship
    was barred by the litigation privilege based on Bank's claim of absolute immunity, we
    reverse the order granting summary judgment on count one.
    In December 2007, Bank filed a foreclosure complaint against property owned by
    the Trust in Cocoa Beach, Florida. As the Trust had leased the property to multiple
    tenants, Bank named these tenants as defendants and served them with process along
    with Trustee and the other parties.
    1See Perl v. Omni Int'l of Miami, Ltd., 
    439 So. 2d 316
    , 317 (Fla. 3d DCA 1983)
    (concluding that fraud count in complaint based on earlier unemployment compensation
    case was barred by litigation privilege (citing Robertson v. Indus. Ins. Co., 
    75 So. 2d 198
    ,
    199 (Fla. 1954))).
    2  See LatAm Invs., LLC v. Holland & Knight, LLP, 
    88 So. 3d 240
    , 242-43 (Fla. 3d
    DCA 2011) (holding litigation privilege applied to action for abuse of process (citing Am.
    Nat'l Title & Escrow of Fla. v. Guar. Title & Tr. Co., 
    748 So. 2d 1054
    , 1055 (Fla. 4th DCA
    2000))). Although count three is actually a claim for malicious prosecution rather than
    abuse of process, see Yoder v. Adriatico, 
    459 So. 2d 449
    , 450 (Fla. 5th DCA 1984), count
    three remains subject to dismissal despite the Florida Supreme Court’s determination in
    Debrincat v. Fischer, 
    217 So. 3d 68
    , 70-71 (Fla. 2017), that such claims are not barred
    by the litigation privilege. An element of malicious prosecution is the termination of the
    original proceeding in favor of the party asserting that it was malicious. See 
    Debrincat, 217 So. 3d at 70
    (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 
    632 So. 2d 1352
    , 1355
    (Fla. 1994)); 
    Yoder, 459 So. 2d at 450-51
    . Consequently, malicious prosecution claims
    cannot be brought in a counterclaim in the original proceeding. See 
    Yoder, 459 So. 2d at 451
    .
    2
    Eventually, Trustee filed an answer along with affirmative defenses and the three-
    count counterclaim. Count one alleged tortious interference with the Trust's business
    relationships with its tenants on the property. Specifically, Trustee alleged that when
    Bank served process on the tenants, Bank's process server demanded to inspect the
    property, told the tenants they would soon need a new place to live, and encouraged the
    tenants to withhold paying rent to the Trust. Trustee further alleged that the Trust's
    tenants ceased paying rent to the Trust and refused to vacate the property. Count two
    alleged fraud and asserted that Bank was aware it did not have standing to file the
    foreclosure complaint and that it filed false affidavits, indorsements, and assignments with
    the trial court in support of its claim. Count three was titled abuse of process. In count
    three, Trustee alleged that Bank's filing of the foreclosure complaint was a malicious and
    frivolous abuse of process because Bank was aware that it did not have standing to
    foreclose.
    Bank asserted absolute immunity under the litigation privilege as an affirmative
    defense to all three counts in Trustee's counterclaim and filed a motion for summary
    judgment primarily on that basis. The trial court granted the motion for summary judgment
    and dismissed the counterclaim with prejudice. Trustee asserts that this was error,
    arguing that the litigation privilege does not apply to his counterclaim.
    Statements or acts are covered by absolute immunity under the litigation privilege
    if they are (1) made or committed in the course of judicial or quasi-judicial proceedings
    and (2) are "connected with, or relevant or material to, the cause in hand or subject of
    inquiry." DelMonico v. Traynor, 
    116 So. 3d 1205
    , 1212 (Fla. 2013) (quoting Myers v.
    Hodges, 
    44 So. 357
    , 361 (Fla. 1907)); accord Echevarria, McCalla, Raymer, Barrett &
    3
    Frappier v. Cole, 
    950 So. 2d 380
    , 383-84 (Fla. 2007); Kidwell v. Gen. Motors Corp., 
    975 So. 2d 503
    , 505 (Fla. 2d DCA 2007). Absolute immunity shields statements by judges,
    counsel, parties, and witnesses during the proceedings. See Levin, Middlebrooks, Mabie,
    Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 
    639 So. 2d 606
    , 608 (Fla. 1994)
    (citing Fridovich v. Fridovich, 
    598 So. 2d 65
    (Fla. 1992)); 
    Myers, 44 So. at 360-61
    .
    Absolute immunity covers ongoing litigation and "conduct that is 'necessarily preliminary'
    to judicial proceedings." AGM Invs., LLC v. Bus. Law Grp., P.A., 
    219 So. 3d 920
    , 924
    (Fla. 2d DCA 2017) (quoting 
    Fridovich, 598 So. 2d at 66
    ).
    In count one, the tortious interference with business relationships claim alleges two
    acts of interference. The first act was filing the foreclosure complaint. The second act
    involved the process server's alleged comments to Trust's tenants. In the context of a
    tortious interference with business relationships claim, the act of filing the complaint is
    subject to absolute immunity under the litigation privilege. See Levin, Middlebrooks,
    Mabie, Thomas, Mayes & Mitchell, 
    P.A., 639 So. 2d at 608
    (finding that litigation privilege
    accords absolute immunity in regards to filing complaint for tortious interference with
    business relationship).   However, Bank's process server's alleged comments to the
    tenants are not covered by absolute immunity under the litigation privilege because they
    were unnecessary to effectuate service of process. See § 48.031(1)(a), Fla. Stat. (2008);
    Matthews v. U.S. Bank, Nat'l Ass'n, 
    197 So. 3d 1140
    , 1145-46 (Fla. 4th DCA 2016) (noting
    that even when process server leaves papers with another resident at party's residence
    and is required to provide information about the contents of the papers, process server
    need only inform recipient that the papers contain a lawsuit (citing Mauro v. Wells Fargo
    Bank, N.A., 
    180 So. 3d 1083
    , 1085 (Fla. 4th DCA 2015))).
    4
    Although statements and acts that are not covered by absolute immunity under the
    litigation privilege may still be protected by qualified immunity under the litigation privilege
    if they are pertinent to the judicial proceeding, see 
    DelMonico, 116 So. 3d at 1213-14
    ,
    1217-20, we decline to reach the qualified immunity issue because it was not raised
    below. See AGM Invs., 
    LLC, 219 So. 3d at 927
    n.5.
    Accordingly, we reverse the trial court's order granting summary judgment on count
    one and remand for further proceedings.3 In all other respects, we affirm.
    AFFIRMED, in part; REVERSED, in part; and REMANDED.
    ORFINGER and WALLIS, JJ., concur.
    3 Bank's argument that the grant of summary judgment should be affirmed based
    on the affidavit of its process server is without merit as the affidavit is limited to the process
    server's general practices, does not explicitly state that the affiant was the one who
    actually served process on the tenants, and it contains no claims about what actually
    happened when the tenants were served, which in the summary judgment context
    amounts to nothing more than factual conclusions. See Johns v. Dannels, 
    186 So. 3d 620
    , 622 (Fla. 5th DCA 2016) ("An affidavit in support of summary judgment may not be
    based on mere conclusions of fact or law." (citing Dep't of Fin. Servs. v. Associated Indus.
    Ins. Co., 
    868 So. 2d 600
    , 602 (Fla. 1st DCA 2004))); TSI Se., Inc. v. Royals, 
    588 So. 2d 309
    , 310 (Fla. 1st DCA 1991).
    5