Stone v. Rosen
| Decision Date | 26 July 1977 |
| Docket Number | No. 76-1214,76-1214 |
| Citation | 348 So.2d 387 |
| Parties | David E. STONE et al., Appellants, v. Lynne B. ROSEN, Appellee. |
| Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg, Stone, Sostchin, Koss & Gonzalez, Miami, for appellants.
Frates, Floyd, Pearson, Stewart, Richman & Greer and James D. Little, Miami, for appellee.
Nicholas R. Friedman, Miami, for The Florida Bar, as amicus curiae.
Before BARKDULL, HAVERFIELD and NATHAN, JJ.
David E. Stone and the law firm of Stone, Sostchin & Ross, plaintiffs in the trial court, appeal from an adverse summary final judgment in a malicious prosecution action.
Between December of 1973 and January of 1974, David Stone (acting for himself and his wife) negotiated with Lynne B. Rosen for the sale of certain realty. The closing did not take place as scheduled, because a dispute arose between the parties concerning checks drawn on David Stone's trust account to cover an amount due and owing under the terms of the deposit receipt agreement. On January 5, 1974, David Stone filed a suit for specific performance of the deposit receipt agreement. This suit ended in favor of Stone.
On April 9, 1974, while the suit for specific performance was pending, Lynne Rosen wrote a letter to The Florida Bar complaining that attorney Stone had acted improperly by commingling his personal funds with those of his firm's clients. On December 6, 1974, the Grievance Committee of The Florida Bar issued a report finding no probable cause for further disciplinary proceeding.
Thereafter, on April 15, 1975, attorney Stone and his law firm filed an action for malicious prosecution against Lynne Rosen, alleging that the accusations to The Florida Bar were false, malicious, and made without probable cause. On June 12, 1975, Rosen answered and raised as affirmative defenses the defenses of absolute privilege and that the complaint to The Florida Bar was based on probable cause that David Stone had acted improperly. The trial court entered a summary final judgment in favor of Rosen, finding that Rosen's conduct in filing a letter of complaint against David Stone with The Florida Bar and the Dade County Bar Association was qualifiedly privileged. This appeal followed. We affirm.
First, there are no issues of fact as to the essential element of the want of probable cause and, therefore, it was a question of law which could have been determined by the entry of a summary judgment adverse to the plaintiff. Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952); Duprey v. United Services Automobile Association, 254 So.2d 57 (Fla. 1st D.C.A. 1971); Fredricks v. School Board of Monroe County, 307 So.2d 463 (Fla. 3rd D.C.A. 1975); cf. Yost v. Miami Transit Co., 66 So.2d 214 (Fla.1953). Even though the trial judge did not cite this as his reason in the order granting summary judgment, he may be right for any reason appearing on the record. Braren v. Lawyers' Realty Abstract Co. of Sarasota, 196 So.2d 244 (Fla. 2nd D.C.A. 1967); Miami Beach First National Bank v. Borbiro, 201 So.2d 571 (Fla. 3rd D.C.A. 1967); First National Bank of Clearwater v. Morse, 248 So.2d 658 (Fla. 2nd D.C.A. 1971). However, a more important point is what we find to be an absolute privilege on the part of a citizen to make a complaint against a member of the integrated bar of this State. Therefore, we find that the order under review was correct for this reason.
All persons desiring to practice law in this State are required to be members of the integrated bar. Art. 2, Sec. 1, Integration Rule of The Florida Bar. The present rules of the integrated bar give counsel adequate protection of confidentiality until a finding of probable cause and an independent vote as to whether or not the proceedings will be made public. Art. 11, Rule 11.12, Integration Rule of The Florida Bar. There is a split of authority in the country as to whether or not one making a complaint against a member of the bar is entitled to a qualified privilege or an absolute one. Among those extending a qualified...
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