Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole

Echevarria, McCalla, Raymer, Barrett & Frappier, et al, seek review of the decision of the First District Court of Appeal in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 896 So.2d 773 (Fla. 1st DCA 2004), on the ground that it expressly and directly conflicts with a decision of the Third District Court of Appeal, Boca Investors Group, Inc. v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We limit our review to the question of law upon which jurisdiction was granted, and hold that the litigation privilege applies in all causes of action, statutory as well as common law. Accordingly, we quash the contrary decision of the First District and remand for further proceedings consistent with our holding.

Facts and Procedural History

This case was presented to the district court under the limited circumstances of an interlocutory review of a trial court’s order certifying the case for class action status. The First District explained the underlying facts giving rise to this action in its decision below:

The plaintiffs are property owners who defaulted on their mortgages with their respective lenders. The Echevar-ria firm, one of the defendants below, was the primary firm retained by the lenders to handle the foreclosure proceedings against the plaintiffs. Echevar-ria sent reinstatement letters to the plaintiffs at the outset of the foreclosure proceedings, stating that the plaintiffs were in default on their respective mortgages and faced foreclosure unless they reinstated the mortgages by bringing their payments up to date. The letters further claimed that the plaintiffs owed certain costs incurred by the lenders in the course of the proceedings. Kim Na-bors and Otis Pye, the original plaintiffs in this action, both had defaulted on their respective mortgages and received reinstatement letters from Echevarria. Neither reinstated their mortgage, and their properties were ultimately foreclosed.

Nabors and Pye filed suit against Echevarria and the other named defendants, alleging that the firm had violated the Florida Consumer Collection Practices Act and the Florida Unfair and Deceptive Trade Practices Act. The essence of the complaint was that the defendants acted unlawfully by asserting a claim for a debt that was in excess of the actual costs their clients incurred during the foreclosure proceedings. Specifically, the plaintiffs argued that the reinstatement letter claimed costs of $325 for title search and examination and various other charges for service of process, when the only cost incurred by the firm was $55 for the title search.

In response, the defendants asserted that the $325 charge was legitimate, as it included $150 for a title search and $175 for a title examination performed by their in-house staff. They further argued that they had not violated either of the statutes referred to in the complaint because their contracts with their lender clients authorized them to charge these amounts.

Cole had previously received a reinstatement letter from Echevarria regarding the potential foreclosure of his mortgage, and as a result, paid the disputed amounts to reinstate his mortgage. On November 13, 2000, Cole, Na-bors and Pye moved for leave to file a third amended complaint to assert Cole’s statutory claims.

Later, Cole, as the putative class representative, filed a motion to certify a class that consisted of “all persons from whom the defendants have filed foreclosure actions and claimed, attempted or threatened to collect costs in the collection of a ‘consumer debt,’ as that term is defined in 559.55(1), Florida Statutes, which were in excess of the amount allowed or authorized by law” for the four years prior to the filing of the initial complaint through the present. He subsequently filed an amended motion for class certification seeking to define the class as all persons in Florida to whom the defendants sent reinstatement letters or against whom they had filed a foreclosure action as counsel for a lender or mortgagee for the period of July 6, 1994, through June 30, 2001.

The trial court granted the plaintiffs amended motion to certify the class action, and concluded that Cole was an appropriate class representative under rule 1.220, Florida Rules of Civil Procedure. In the certification order, the trial court defined the class as all persons in Florida to whom the Echevarria firms sent reinstatement letters between July 6, 1994, and June 30, 2001, seeking to collect amounts for (1) a title search or examination exceeding the firms’ actual out-of-pocket expenses incurred to a third-party vendor; (2) service of process; and (3) fees or costs that had not been incurred at the time the firms sent the reinstatement letter. However, the court limited the class to those persons whose default or failure to timely pay their mortgage obligations did not ultimately result in a foreclosure judgment or sale.

Echevarria, 896 So.2d at 774-75 (footnotes omitted). In appealing the trial court’s decision to the First District, Cole argued that the class definition was too narrow because it excluded property owners who received a reinstatement letter but who then failed to reinstate their mortgage, leading to a foreclosure judgment or sale of their properties. Id. at 775-76.

Cole asserted that an action under the Consumer Collection Practices Act does not depend on whether the underlying debt is valid, owed, paid, or reduced to judgment since the right to bring a suit under the Act arises from the debt collector’s conduct in collecting the debt and whether the conduct involves unscrupulous debt collection practices. Id. at 776. The trial judge seemingly agreed with Cole that the class should include everyone who received a reinstatement letter; the class certification order stated both that it was irrelevant whether the prospective class member reinstated the mortgage and that the mere transmission of the letter impacted all class members similarly. Id. Nevertheless, despite its explicit finding that “the violation of the Consumer Collection Practices Act is triggered by the transmission of the reinstatement letter seeking illegitimate costs, not by the ultimate outcome of any foreclosure proceedings,” the trial court limited the class to include only those whose failure to pay their mortgage obligations did not result in a foreclosure judgment or sale. Id.

In attempting to reconcile the discussions on the record from the trial court’s hearing with the trial court’s statements in the final order regarding the significance of an actual foreclosure judgment, the First District concluded that the trial court’s inclusion of this qualifier in the class definition was a misstatement. Id. The First District further held that, if it was not a misstatement, the trial court’s decision to limit the class size in such a manner was plain error under both the trade practices and the collection statutes because there was no legal justification for such a limitation. Id.

Echevarria asserted that the trial court limited the class in an attempt to avoid the implications of a possible litigation privilege bar to those claimants involved in judicial mortgage foreclosure actions. Id. The First District rejected that argument, finding that the litigation privilege did not apply to the instant case because the suit was initiated as a statutory cause of action. Id. at 777. The court below reasoned that the litigation privilege has traditionally been reserved only for common law tort actions such as libel, defamation and fraud. Id. at 776-77. Then, invoking a separation of powers analysis, the court stated that “a judicially created policy such as the judicial immunity rule must not be used to limit the application of a legislatively created, statutory cause of action.” Id. at 777. Thus, the First District concluded that “the judicially created judicial immunity rule cannot be applied as a bar to the statutory causes of action in this case.” Id.

Litigation Privilege

Echevarria now appeals to this Court, citing conflict with the Third District’s decision in Boca Investors as to the application of the litigation privilege in proceedings involving statutory causes of action. Boca Investors initially involved a suit for tortious interference with a business relationship; however, the plaintiffs later moved to amend their original complaint to add a “statutory anti-trust claim.” 885 So.2d at 274-75. The trial court dismissed the case and denied the motion to amend, citing this Court’s decision in Levin, Mid-dlebrooks, Mabie, Thomas, Mayes Mitchell, P.A. v. United States Fire Insurance Co., 689 So.2d 606 (Fla.1994), for the proposition that absolute immunity is properly afforded to any act occurring during the course of a judicial proceeding. Boca Investors, 835 So.2d at 274. The Third District subsequently upheld the trial court’s dismissal, including the rejection of the amendment, finding “such a [statutory] claim is also based on statements covered by the litigation privilege. See Burton [v. Salzberg, 725 So.2d 450, 451 (Fla. 3d DCA 1999) ].” Boca Investors, 835 So.2d at 275. Thus, in a case where a statutory antitrust claim was asserted, the Third District explicitly acknowledged that the litigation privilege could be invoked. Because the First District’s decision below, holding that the litigation privilege cannot be invoked when a statutory claim is being litigated, is in direct and express conflict with the Third District’s holding in Boca Investors, we accepted jurisdiction and now resolve the conflict.

Analysis

In Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907), this Court recognized the principle of the litigation privilege in Florida, essentially providing legal immunity for actions that occur in judicial proceedings. In that case, involving a libel suit based on statements contained in a complaint, this Court established a qualified litigation privilege, requiring that the alleged defamatory statements be relevant to the judicial proceeding. Id. at 361-2. Under our holding, once this threshold showing was met, the statements were entitled to immunity. Id.

We most recently applied the litigation privilege in Levin. In that case, the Eleventh Circuit certified a question to this Court, asking whether Florida’s litigation privilege protects the act of certifying to a trial court an intent to call opposing counsel as a witness at trial in order to obtain counsel’s disqualification, and later failing to subpoena and call that person as a witness, from a claim of tortious interference with a business relationship. 639 So.2d at 607. Answering in the affirmative, we extended the litigation privilege to all torts, finding that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding.” Id. at 608. We reasoned that the justification behind immunizing defamatory statements applies equally to “other misconduct occurring during the course of a judicial proceeding.” Id. We concluded the opinion by noting that adequate remedies still exist for misconduct in a judicial proceeding, most notably the trial court’s contempt power, as well as the disciplinary measures of the state court system and bar association. Id. at 608-09. Notably, our holding was without qualification as to the nature of the judicial proceedings, whether based on common law, statutory authority, or otherwise.

Levin plainly establishes that “[t]he rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding.” 639 So.2d at 608 (emphasis supplied). Importantly, the policy reasons for adopting a rule of immunity for actions taken in judicial proceedings focus on the judicial nature of the proceedings, not whether they were initiated under common law or statute. It is the perceived necessity for candid and unrestrained communications in those proceedings, free of the threat of legal actions predicated upon those communications, that is at the heart of the rule. The nature of the underlying dispute simply does not matter. Hence, the rationale upon which we relied in extending the litigation immunity privilege to all tortious causes of action likewise applies to a statutory cause of action: “Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Id.

We see no reason why this rationale would be limited by whether the misconduct constitutes a common-law tort or a statutory violation. The litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin. “Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Id.

Conclusion

Given the precedent established by Lev-in, we hold that the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations. Accordingly, we approve the decision in Boca Investors, quash the decision of the First District herein, and remand for further proceedings consistent herewith.

It is so ordered.

LEWIS, C.J., and PARIENTE, QUINCE, and CANTERO, JJ., concur.

PARIENTE, J., concurs with an opinion, in which CANTERO, J., concurs.

WELLS, J., concurs in part and dissents in part with an opinion.

BELL, J., concurs in part and dissents in part.

. The parties have raised numerous other issues both in the briefs and at oral argument which go well beyond the conflict issue, including, for example, an issue as to the point at which the litigation privilege may first be asserted. As we emphasized in our jurisdictional order, we granted jurisdiction in this case to consider only the conflicting holdings on the application of the litigation privilege.

. In addition to numerous traditional defamation claims, courts in Florida have applied Levin to uphold the use of the privilege in such diverse actions as civil conspiracy and tortious conduct in interfering with custody and visitation rights. See Van Horn v. McNabb, 715 So.2d 380, 381 (Fla. 4th DCA 1998) ("It is clear, from the face of the complaint, that Van Horn enjoys absolute immunity from any alleged defamation or other tortious act done in the course of the prior judicial proceeding.”); Rushing v. Bosse, 652 So.2d 869, 875-76 (Fla. 4th DCA 1995) (affirming a dismissal for a count of civil conspiracy, citing to Levin and holding that "absolute immunity would be afforded to any conduct occurring during the course of the adoption proceeding, regardless of whether the conduct involved a defamatory statement or other tortious behavior, including a violation of rule 2.060(d) because signing the petition for adoption ... has some relation to the adoption proceeding”).