County Civil Court: APPELLATE PROCEDURE – Litigation Immunity – Litigation immunity may not be raised by a motion to dismiss unless the facts giving application to the defense are clearly apparent on the face of the complaint. It is typically pleaded as an affirmative defense and then considered after the facts are developed by summary judgment or trial. The County Court dismissed without developing the record with respect to the applicability of the defense under the facts presented - Reversed and remanded. Eggitt v. Atlantic Credit & Finance, Inc., No. 09-000024AP-88B (Fla. 6th Cir. App. Ct. June 22, 2010).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

FRANCIS EGGITT,

Appellant,                                     Ref. No. 09-000024AP-88B

UCN: 522009AP000024XXXXCV

v.                                                                                

ATLANTIC CREDIT & FINANCE, INC.,

Appellee.

/

ORDER AND OPINION

THIS CAUSE is before the Court on appeal by Appellant Francis Eggitt from the County Court’s Order on Defendant’s Motion to Dismiss entered on March 18, 2009, in favor of Appellee Atlantic Finance and Credit, Inc. Upon review of the briefs and the record and being otherwise fully advised, the Court reverses the trial court’s Order and remands this matter for further proceedings.

Appellee Atlantic Credit & Finance, Inc. (“Atlantic”) sued Appellant Francis Eggitt in a collection action to collect a past consumer debt on a credit card agreement between Eggitt and Metris Bank. Eggitt raised a statute of limitations defense, and Atlantic voluntarily dismissed the case prior to a ruling on the statute of limitations issue.

Eggitt then sued Atlantic alleging multiple violations of the Florida Consumer Collections Practices Act (“FCCPA”), Florida Statutes section 559.72, Part VI, by its filing of an unsupportable lawsuit against a consumer in order to obtain default or settlement. Atlantic filed a motion to dismiss based on the doctrine of litigation immunity. The County Court heard argument on the motion on February 26, 2009, and on March 18, 2008, entered its Order granting the motion to dismiss, finding that (1) all matters pleaded by Eggitt related solely to the litigation activity of Atlantic; (2) the litigation privilege extends to actions filed under the FCCPA and Florida common law; (3) the federal Fair Debt Collection Practices Act does not preempt FCCPA actions; and (4) the litigation immunity set forth in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007), is not limited in scope as it applies to the FCCPA.

The Florida Supreme Court has recognized the applicability of litigation immunity for actions based on misconduct during a prior judicial proceeding. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). In Levin, the court held specifically that absolute immunity must be afforded to tortious conduct or statements or actions occurring during the course of a judicial proceeding “so long as the act has some relation to the proceeding.” The court reasoned that this “absolute immunity” allows participants in litigation to engage in unhindered communication and to use their judgment in proceedings without fear of having to defend their actions in a subsequent civil action. Id.

In Echevarria, the Florida Supreme Court followed this rationale in Levin and extended the scope of the litigation to include statutory causes of action. Appellee urges the Court to construe the holding in Echevarria broadly based on the language that “the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations.” Echevarria, 950 So. 2d at 384 (emphasis added).

Appellee argues that this Court must uphold the trial court’s summary dismissal of its FCCPA claims based on the relation of the alleged misconduct to the prior litigation activity of Atlantic. However, this Court adopts the reasoning in Frazier v. Asset Acceptance, LLC, Case No. 08-33935 (Fla. Hillsborough Cty. Ct. Apr. 20, 2009), and construes the holding in Echevarria to extend the litigation immunity to statutory as well as common law action only, but not as an absolute bar to all actions arising from FCCPA. See also Kelly v. Palmer, Reifler & Assocs., P.A., 681 F. Supp. 2d 1356 (S.D. Fla. 2010) (discussing Echevvaria and Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323 (Fla. 4th DCA 1983)).

The decisions of other Florida courts, which this Court finds persuasive, indicate that litigation immunity may not be raised by a motion to dismiss unless the facts giving application to the defense are clearly apparent on the face of the complaint. See Fariella v. Gavin, 873 So. 2d 1243, 1245 (Fla. 5th DCA 2004); Am. Nat. Title & Escrow of Fla., Inc. v. Guarantee Title & Trust Co., 810 So. 2d 996, 998 (Fla. 4th DCA 2002). Instead, litigation immunity is typically pleaded as an affirmative defense and then considered after the facts are developed by summary judgment or trial. The applicability of the affirmative defense in this instance is not demonstrated on the face of the Complaint or exhibits and cannot be resolved on a motion to dismiss. The matter is remanded to the County Court to develop the record with respect to the applicability of the litigation immunity defense under the facts presented by this action.

Accordingly, it is

ORDERED AND ADJUDGED that the Order Granting Defendant’s Motion to Dismiss is REVERSED and this cause is REMANDED for action consistent with this Order and Opinion.

It is further ORDERED AND ADJUDGED that Appellant’s Motion for Attorney’s Fees is DENIED as premature; Appellant’s Request for Oral Argument is DENIED as moot; and Appellee’s Motion for Attorney’s Fees is DENIED.

DONE AND ORDERED in Chambers in St. Petersburg, Pinellas County, Florida, on the 22nd day of June 2010.

Original order entered on June 22, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

Copies furnished to:

THE HONORABLE DOROTHY VACCARO

COUNTY JUDGE

Clearwater Historic Courthouse

324 South Ft. Harrison Avenue

Clearwater, FL 33756

MARK T. TISCHHAUSER, ESQUIRE

The Tischhauser Law Group

2004 Pan Am Circle Dr., #200

Tampa, FL 33607

BARBARA A. SINSLEY, ESQUIRE

Barron, Newburger, Sinsley & Wier, PLLC

2901 West Busch Boulevard, Suite 703

Tampa, FL 33618