Filing Electronically Filed PM JEFFREY EPSTEIN Plaintiff vs SCOTT ROTHSTEIN individually BRADLEY EDWARDS individually and L.M individually Defendant I IN THE CIRCUIT COURT OF THE FIFTEENTH illDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO COUNTER-PLAINTIFF BRADLEY EDWARDS MOTION FOR RECONSIDERATION Counter-Plaintiff BRADLEY EDWARDS EDWARDS moves this Honorable Court to reconsider the Courts announced intention to grant a summary judgment in favor of the Counter-Defendant JEFFREY EPSTEIN EPSTEIN and in support of this motion would show The issue squarely presented by EPSTEINS Motion for Summary Judgment is whether a non-lawyer is protected from liability by the litigation privilege when he initiates a civil lawsuit knowing that it is not only unsupported by probable cause but that it is completely unsupported by both the facts and the law and is filed solely for the purpose of intimidation and extorting a negotiating advantage in other civil litigation Prior to the decision of the Third District Court of Appeal in Wolfe Foreman So.3d no reported decision in the State of Florida or in any other jurisdiction in the nation had ever extended the absolute immunity of the litigation privilege to bar a properly pled claim for malicious prosecution A A 4A E0 A4 DE a qr?q rq qrCX HhL Kg lg d?a d6U a M3 flW y??S m/y t0 I F/Z V/j 1a qC KS u?v vZ O5 a qr rCX qC 0V I I dc rM?M rM 10Cy n??m?n k?o?h I A I w?!ac qr MCX 10Cy ITy qr M3 Ґ??1rA5R h?H?T3P K?z X?K H?o I Idc rM?M rM 10Cy f헊?f?Tz e?e:Aa I v"x i X5 EO5 5a r?q CX 9r Cy rq rqC M3 ş?:c p/p0 5H V)V 6T Y2 G5 qrM?r?qr?r9 q?10Cy rCX qr l1 X?l 3K fm?Q Z2f CX CX gT L??T 2E Cy 3P EM3 J4T L?h??M q?ᡚ?Y r??O?rJt CTX i P!e i I CTX rC YY I 1e 2j CTX X0T1i k3v Jh/e0h1 H(K W/Q0 CTX j?!k 5B r2 CTX A A A 4v z"p A A A0A?A AK CTX A A?!k CX qCX YCX i!d A fi8 l8 yuZ 6L pH m?c sP;0 6ZR Ni P0 0Q X(P0s s(s p0 Pp CTX qq dR B/J Va A y!k N?M??N rC f?Nla3 Yz N?q qr NEeD K?i N?M?qr EeD k??O d6 I I i i CTX GH FT I CTX U3 U3 U3 U3 S6 E"L I I 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h3V g?KIq V5kL O65S d_xKKU vV 5H p1 Z6 CTX U0 U1 CTX U0 U1 A0 1D qr qr 10Cy YY K??Kl 1B AMwv 1K F1 KV yW Gd T?H CTX CTX I CK M?qr K?SK?PQZ I IRZX 8YCX 10Cy qr CX kv zg S5kB??a iG wA CTX U2 6Y CTX U2 6Y I K,,j j,s 6Y P!p qr 10Cy qr YY G?O 9K mSd X0 9r?yal 1d bY0 XNf??qN D?J CTX P!Z b!o C,C qrM 10Cy qr8 I fX2 9R lO KV CTX Oo CTX A qr r?qr rq YY Lsy7H4 C,6E IL CTX U3 CTX J,O3_3xx qrM?r q?CX Y9/C 9CX CTX Y10Cy CX CX CX YC YY FV uTl bEWa ȓjJ-8 Gc G??Q9E 9Wq CTX CTX Up i I A 9_ qr qr YY D.X 7s F??Y bc3_c iH CTX CTX A qr 10Cy YY EMq 7H AY mK9Z BY A2 P6L N7 CTX CTX a I I i qr rC CTX CTX 7O I FMM qr qr i I I3 CTX Z6 I L(K4 P:u Z6P CTX y8 Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of As misinterpreted by the Third DCA the litigation privilege would be converted from a tool to allow properly-filed litigation to move forward unimpeded into a license to deliberately file baseless litigation purely for purposes of harassment If the Florida litigation privilege is interpreted to mean that even a maliciously filed lawsuit somehow becomes protected activity then Florida will stand alone among all the states Counsel have undertalcen a broad survey of the laws and court decisions in fifty states and the District of Columbia At this point counsel have been unable to locate even a single precedent from another state that would support such an extreme result On the other hand many states have written opinions malcing clear that while conduct within a properly-filed lawsuit supported by probable cause may be protected the litigation privilege sometimes referred to as the judicial privilege does not give license to maliciously file or maintain a lawsuit that is known to have no factual or legal support As a recent decision explains A vast number of other jurisdictions hold that even where an absolute privilege bars an action for defamation based on statements made during a judicial proceeding it does not bar an action for malicious prosecution Estate of Mayer Lax Inc Ind App The cases supporting this fundamental proposition are legion including arranged in alphabetical order by state Alaska Indus Power Lighting Corp Modular Corp P.2d Alaska This the litigation privilege does not mean that the defendant may not maintain an action for malicious prosecution if the current litigation is terminated favorably to it Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of and if malice on the part of the plaintiff and lack of probable cause for the claim asserted are pleaded and proven Arizona Sierra Madre Dev Inc Via Entrada Townhouses Ass Ariz App P.2d We note that this litigation privilege is not unlimited Nothing said herein is intended to affect the validity of any claim for relief based upon malicious prosecution or abuse of process See Comment a Restatement of Torts supra California Hogen Valley Hosp Cal.App.3d Cal.Rptr the fact that a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case The policy of encouraging free access to the courts that underlies the privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination lack of probable cause and malice are satisfied internal citations omitted Colorado Mehaffy Rider Windholz Wilson Cent Bank Denver NA P.2d Colo an attorney while fulfilling his obligation to his client is liable for injuries to third parties when his conduct is fraudulent or malicious internal quotation omitted Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of Connecticut Simms Seaman Conn A.3d This court also has determined that absolute immunity i.e litigation privilege does not bar claims against attorneys for malicious prosecution Delaware Nix Sawyer A.2d Del.Super any litigant seeking application of a sham litigation exception to judicial privilege would have to present an exceedingly strong factual showing in order to defeat operation of the privilege The plaintiffs burden in this respect is analogous to the requisite showing for a claim of malicious prosecu District of Columbia Finkelstein Thompson Loughran Hemispherx Biopharma Inc A.2d D.C An attorney who makes false and defamatory statements to inveigle a client into filing a frivolous lawsuit risks a malicious prosecution action by the party defamed from which the judicial proceedings privilege will afford no protection overruled on other grounds A.3d D.C Hawaii Kahala Royal Corp Goodsill Anderson Quinn Stifel Hawaii P.3d Ha Absolute privileges such as the litigation privilege should only be permitted in limited circumstances Thus we do not believe that a litigation privilege should apply to bar liability of an attorney in all circumstances In Mehaffe Rider Windholz Wilson Central Bank Denver NA P.2d the Colorado Supreme Court noted that an attorney is not liable to a non-client absent a finding of fraud or malicious conduct by the attorney See also Baglini Lauletta NJ.Super Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of A.2d The one tort excepted from the reach of the litigation privilege is malicious prosecution or malicious use of process We believe such exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorneys duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party Idaho Taylor McNichols Idaho P.3d Application of the litigation privilege varies across jurisdictions but the common thread found throughout is the idea that an attorney acting within the law in a legitimate effort to zealously advance the interests of his client shall be protected from civil claims arising due to that zealous representation An attorney engaging in malicious prosecution which is necessarily pursued in bad faith is not acting in a manner reasonably calculated to advance his clients interests and an attorney engaging in fraud is likewise acting in a manner foreign to his duties as an attorney Indiana Estate of Mayer Lax Inc N.E.2d Ind Ct App transfer denied WL Ind Jan A vast number of other jurisdictions also hold that even where an absolute privilege bars an action for defamation based on statements made during a judicial proceeding it does not bar an action for malicious prosecution We see no reason to depart from this wealth of authority and thus hold that the absolute privilege for communications made during a judicial proceeding does not bar Lax and Lascos cause of action for malicious prosecution arising from such communications internal quotations omitted Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of Iowa Wilson Hayes N.W.2d Iowa an attorney would only be liable if the attorney knowingly initiated or continued a suit for a clearly improper purpose Louisiana Goldstein Serio So.2d La App Malicious prosecution however is not concerned with the statements made during a proceeding but rather with the intent of the parties in instituting the original proceeding Therefore we cannot hold that absolute privilege is an affirmative defense to a malicious prosecution action Maryland Keys Chrysler Credit C01p Md A.2d Thus even the intentional and wrongful bringing or maintaining oflitigation will not destroy the absolute privilege that attends the litigation and a cause of action other than defamation must be employed to redress such a wrong The elements of the cause of action of malicious use of process are A prior civil proceeding was instituted by the defendant The proceeding was instituted without probable cause The proceeding was instituted with malice The proceeding terminated in favor of the plaintiff We conclude the evidence was sufficient to permit the trier of fact to find the existence of all elements of this cause of action Mississippi McCorkle McCorkle So.2d Miss.App.,2001 There is precedent indicating that the presence of malice prohibits the assertion of judicial privilege Because we find there is evidence in the record to support a finding of malice in the case at bar we do not find that Donald may assert judicial privilege and find no merit to this assignment of error internal citations omitted Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of Nebraska McKinney Okoye Neb N.W.2d Because the elements of the tort of malicious prosecution are difficult to prove it is unnecessary to grant absolute privilege There is a kind of qualified immunity built into the elements of the tort Indeed all those who instigate litigation are given partial protection by the rules that require a plaintiff claiming malicious prosecution to show improper purpose a lack of probable cause for the suit or prosecution and other elements These elements effectively act as and could be analogized to the defamation defense of qualified or conditional privilege which protects speakers in certain situations but is lost if the speaker abuses it We conclude that absolute privilege does not bar an action for malicious prosecution New Jersey Della Russo Nagel N.J Super A.2d App Div The litigation privilege is not absolute For example it does not insulate a litigant from liability for malicious prosecution New York Lacher Engel A.D.3d N.Y.S.2d N.Y App Div This absolute litigation privilege may be lost if abused More specifically this Court held that the privilege is limited to statements which are not only pertinent to the subject matter of the lawsuit but are made in good faith and without malice internal quotations omitted Ohio Willis Linnen Co LP.A Linnen Ohio App.3d N.E.2d Ohio App appellant asserts that his claims abuse of process Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of and malicious prosecution do not fall within the privilege We agree that appellants claims themselves are not barred by the doctrine of absolute privilege Oregon Mantia Hanson Or App P.3d When is an absolute privilege not absolute But at least with respect to the absolute privilege pertaining to participation in judicial and quasi-judicial proceedings there is a ready answer An actors conduct is so egregious as to be deprived of the protections of the absolute privilege when that conduct satisfies the elements of wrongful initiation See Restatement at comment a absolute privilege does not apply to claim for wrongful initiation of civil proceedings/malicious prosecution West Virginia Clark Druckman Va S.E.2d However the litigation privilege does not apply to claims of malicious prosecution and fraud The principle that a malicious prosecution action is not barred by the litigation privilege is so widely-accepted that it has been explicitly recognized in the Restatement Second of Torts as conventional tort theory The Restatement begins by noting the existence of a litigation privilege stating A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or in the institution of or during the course and as a pa.ii of a judicial proceeding in which he participates if the matter has some relation to the proceeding Restatement Second of Torts However as Comment a of Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of that section immediately explains a malicious prosecution action is not covered by the privilege The Comment explains One against whom civil or criminal proceedings are initiated may recover in an action for the wrongful initiation of the proceedings under the rules stated in to if the proceedings have terminated in his favor and were initiated without probable cause and for an improper purpose Id cmt a emphasis added The cited provisions i.e to are the provisions stating the tort of malicious prosecution Florida has long adhered to the universal recognition of malicious prosecution as an exception to the absolute litigation privilege Indeed the Fifth District Court of Appeal in Wright Yurko So.2d DCA applied the privilege to bar various claims for tortious conduct alleged to have occurred in the course of prior judicial proceedings but the Court expressly excluded the malicious prosecution claim from that bar The only private remedy in this context allowed or recognized is the ancient cause of action for malicious prosecution This tort has its own special elements and defenses They are a criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action the proceeding was instigated by the defendant in the malicious prosecution action the proceeding has ended in favor of the plaintiff in the malicious prosecution the proceeding was instigated with malice without probable cause and Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page IO of13 resulted in damage to the plaintiff in the malicious prosecution action Kalt Dollar Rent-A-Car So.2d Fla 3d DCA If all of these elements of malicious prosecution are properly pleaded in a complaint the suit must be allowed to proceed Emphasis Added Prosser Law of Torts 4th ed see Bencomo Morgan So.2d Fla 3d DCA Leach Feinberg So.2d Fla 3d DCA cert denied So.2d Fla Wright Yurko So.2d at Attached as Appendix A This same position expressly recognizing that claims for malicious prosecution are outside the protection of the litigation privilege is reflected in the holding of the Fourth District Court of Appeal in Graham-Eckes Palm Beach Academy Inc Johnson So.2d DCA There the Court affirmed a judgment on the pleadings on a counterclaim for intentional interference with a contract but the Court specifically observed that the privilege did not extend to a claim for malicious prosecution Appellant contends that the absolute privilege normally afforded to pleadings should not apply where the complaint is wholly frivolous and filed to interfere with the performance of a contract for the sale of property While appellants argument is persuasive we hold that its proper cause of action would have been one for malicious prosecution and affirm on the authority of Procacci Zacco So.2d Fla 4th DCA Thus both the Fourth and Fifth DCAs have each expressly ruled that while the absolute litigation privilege bars other tort claims the ancient cause of action for malicious prosecution remains a viable means to address the injuries caused by baseless and purely vexatious litigation Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of The compelling public policy considerations that support the need to recognize this ancient cause of action are succinctly summarized in the Comments to Restatement Second of Torts copy attached as Appendix EPSTEIN makes repeated reference to the trilogy of cases that includes not only Wolfe but also Levin Middlebrooks Moves Mitchell P.A U.S Fire Insurance Co So.2d Fla and Echevarria etal Cole So.2d In doing so EPSTEIN makes the same fatal error that misled the Third DCA The general holdings of Levin Middlebrooks and Echevarria which addressed and barred claims other than malicious prosecution were extended by the Third DCA to the sole exception to the litigation privilege without any recognition of or analysis of the existence of or basis for the exception Confronted with the issue of whether malicious prosecution claims are an exception to the litigation privilege the Fourth and Fifth DCAs have clearly recognized that they are an exception Wolfe is wrongly decided and on the authority of Wright Yurko this Court has the discretion to reject the erroneous opinion of the Third DCA On the autl1ority of the Fourth DCAs opinion in Graham-Eckes this Court is compelled to reject the erroneous opinion of the Third DCA WHEREFORE EDWARDS respectfully requests that this Honorable Court reconsider its announced position that it is obliged to follow Wolfe This Court is not compelled to follow Wolfe and to grant a summary judgment tliat would immunize EPSTEINs blatant attempt at extortion through the malicious misuse of the civil justice system Fourth DCA precedent Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of requires the continued recognition of the ancient cause of action of malicious prosecution and denial ofEPSTEINs Motion for Summary Judgment I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list this Florid Atto ey Mail jsx searcylaw.com and me arcylaw.com E-Mail eservice searcylaw.com ondary E-Mail _scarolateam searcylaw.com earcy Denney Scarola Barnhart Shipley P.A Palm Beach Lakes Boulevard West Palm Beach Florida Phone Fax Attorneys for Bradley Edwards Edwards adv Epstein Case No Counter-Plaintiff Bradley Edwards Motion for Reconsideration Page of COUNSEL LIST William Chester Brewer Esquire wcblaw aol.com wcbcg aol.com Australian Avenue Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein Jack A Goldberger Esquire goldberger agwpa.com smahoney agwpa.com Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein Bradley Edwards Esquire staff.efile pathtojustice.com Farmer Jaffe Weissing Edwards Fistos North Andrews Avenue Suite Fort Lauderdale FL Phone Fax Fred Haddad Esquire Dee FredHaddadLaw.com Fred FredHaddadLaw.com One Financial Plaza Suite Fort Lauderdale FL Phone Fax Attorneys for Jeffrey Epstein Marc Nurik Esquire marc nuriklaw.com Law Offices of Marc Nurik One Broward Blvd Suite Fort Lauderdale FL Phone Fax Attorneys for Scott Rothstein Tonja Haddad Coleman Esquire tonja tonjahaddad.com Debbie Tonjahaddad.com efiling tonjahaddad.com Tonja Haddad P.A SE 7th Street Suite Fort Lauderdale FL Phone Fax Attorneys for Jeffrey Epstein Wright Yurko So.2d So.2d District Court of Appeal of Florida Fifth District Benjamin E:WRIGHT Appellant Albert YURKO Leon Dorman Lila Dorman and Barnette Greene Appellees Nos I March Doctor appealed from judgments of the Circuit Court Orange County Victor Wehle denying him relief in malicious prosecution cases brought against medical malpractice plaintiffs their expert witness and their attorney The District Court of Appeal Sharp held that counts in both lawsuits attempting to aHege cause of action in defamation conspiracy to c01mnit defamation or perjury with respect to statements made by defendants herein in course of prior judicial proceedings in medical malpractice action were insufficient as matter of law such statements being accorded absolute immunity complaint as against medical malpractice plaintiffs and their expert witness sufficiently pleaded requirecl elements of malicious prosecution and hence was improperly dismissed affidavit of defendants attorney in support of summary judgment was in proper form indicating by nature of statements therein that it was based on personal belief and knowledge and that affidavit showing that attorney reasonably researched and investigated medical malpractice case and had tenable theory to present to the court and jury negated essential element for malicious prosecution claim against the attorney namely filing of challenged action without probable cause Affinned in part reversed part and remanded Dauksch concurred in part dissented in part and filed opinion West Headnotes Libel and Slander Judicial Proceedings 237Libel and Slander 237IIPrivileged Communications and Malice Therein 237k35Absolute Privilege 237k38Judicial Proceedings In General Parties witnesses and counsel are accorded absolute iimnunity as to civil liability with regard to what is said or written in course of a lawsuit providing the statements are relevant to the litigation Cases that cite this headnote Libel and Slander Judicial Proceedings 237Libel and Slander 237IIPrivileged Communications and Malice Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d Therein 237k35Absolute Privilege 237k38Judicial Proceedings In General Reason for rule according parties witnesses and counsel absolute ilmnunity from civil liability for statements made in course of lawsuit is that although it may bar recovery for bona fide injuries chilling effect on free testimony and access to courts if such suits were allowed would severely hamper adversary system Cases that cite this headnote Libel and Slander Nature and Elements of Defamation in General Torts Perjury or False Testimony 237Libel and Slander 237IWords and Acts Actionable and Liability Therefor 237k1Nature and Elements of Defamation in General 379Torts 79ITortious Interference Obstruction of or Interference with Legal Remedies Spoliation 379k307Perjury or False Testimony Formerly Remedies for perjury slander and the like committed during judicial proceedings are left to discipline of the courts bar association and the State Cases that cite this headnote SJ Conspiracy Nature and Elements in General Conspiracy 91ICivil Liability A Acts Constituting Conspiracy and Liability Therefor 9lk1Nature and Elements in General 91kl.1In General Formerly 9lkl Actionable conspiracy requires actionable underlying tort or wrong act which does not constitute basis for cause of action against one person cannot be made basis for civil action for conspiracy Cases that cite this headnote Conspiracy Conspiracy to Injure in Person or Reputation Libel and Slander Evidence Torts Perjury or False Testimony 91Conspiracy 91ICivil Liability I A Acts Constituting Conspiracy and Liability Therefor 91k7Conspiracy to Injure in Person or Reputation 7Libel and Slander 237IIPrivileged Communications and Malice Therein 237k35Absolute Privilege 237k38Judicial Proceedings Evidence 379Torts 79ITortious Interference Obstruction of or Interference with Legal Remedies Spoliation 379k307Perjury or False Testimony Formerly Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d Plaintiffs and their expert witness could not be held liable for defamation conspiracy to commit defamation or perjury with respect to statements made by them course of judicial proceedings medical malpractice action Cases that cite this headnote Malicious Prosecution Requisites and Sufficiency in General 249Malicious Prosecution Actions 249k46Pleading 249k47Requisites and Sufficiency in General If all elements of malicious prosecution are properly pleaded in a complaint suit must be allowed to proceed however if one element is not sufficiently pleaded complaint should be dismissed Cases that cite this headnote Malicious Prosecution 0c Requisites and Sufficiency in General 249Malicious Prosecution 249VActions 249k46Pleading 249k47Requisites and Sufficiency in General Allegations that medical malpractice suit was filed without probable cause and with malice and intent to injure doctor and that it concluded in doctors favor resulting in special and general damages to him together with allegation that plaintiffs expert witness conspired with plaintiffs to bring the suit stated cause of action for malicious prosecution Cases that cite this headnote Judgment Personal Knowledge or Belief of Affiant udgment 228VOn Motion or Summary Proceeding 228kl82Motion or Other Application IAffidavits Form Requisites and Execution of Personal Knowledge or Beliefof Affiant Affidavit of attorney who unsuccessfully represented parties in medical malpractice action in support of summary judgment in subsequent malicious prosecution action against him was in proper fonn though omitting introductory statement that it was made based on personal belief and knowledge inasmuch as it was clear from statements made in body of the affidavit with respect to consultations with medical experts and review of medical treatises that they were based on defendants own knowledge Wests F.S.A RCP Rules cmmnent Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d Cases that cite this headnote Judgment Presumptions and Burden of Proof 228Judgment 228VOn Motion or Summary Proceeding 82Motion or Other Application 85Evidence in General Presumptions and Burden of Proof Effect of defendants motion for summary judgment in malicious prosecution action was to shift burden to plaintiff to come forward and show with proper proofs that material question of fact existed as to whether defendant who represented parties in prior medical malpractice action brought that action without probable cause Cases that cite this headnote lOJ Malicious Prosecution i.i Civil Actions and Proceedings 249Malicious Prosecution 249IIWant of Probable Cause 249k25Civil Actions and Proceedings In General To establish in malicious prosecution action probable cause for having brought prior action it is not necessary to show that instigator of the prior lawsuit was certain of outcome of the proceeding but rather that he had reasonable belief based on facts and circumstances known to him validity of the claim Cases that cite this headnote Malicious Prosecution Probable Cause and Malice 249Malicious Prosecution Actions Weight and Sufficiency of Evi deuce Probable Cause and Malice Affidavit of attorney against whom malicious prosecution action was brought showing that he reasonably researched and investigated medical malpractice case and had tenable theory to present to the court and jury together with fact that case went to the jury and survived motions for summary judgment and directed verdict which while not conclusively proving probable cause was strong indication of substantial case served to negate essential element for malicious prosecution namely filing without probable cause Cases that cite this headnote Malicious Prosecution Advice of Counsel 249Malicious Prosecution 249IIWant of Probable Cause 7Criminal Prosecutions 249k21Advice of Counsel Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d In General Reliance on advice of counsel is not an absolute defense in malicious prosecution case Cases that cite this headnote Attorneys and Law Firms Robert Bowles Jr Orlando and Joe Alfred Izen Jr Houston Tex for appellant Michael Levin of Rumberger Kirk Caldwell Cabaniss Burke P.A Orlando for appellee Yurko Michael Walsh Orlando for appellees Dorman Roy Dalton Jr of Dalton Provencher P.A Orlando for appellee Greene Opinion SHARP Judge Wright appeals from judgments denying him relief as plaintiff in two malicious prosecution cases The cases were consolidated on appeal because they involved the same parties and the same incident In one suit which was disposed of by summary judgment Wright sued Yurko who represented Leon and Lila Dorman in their malpractice case against Wright We affinn the summary judgment in that case The other suit was filed by Wright against the Donnans andBarnett Greene an expert witness who testifiedat the malpractice trial for Leon Donnan This case was dismissed because the lower court ruled the amended complaint failed to state a cause of action Greene was also awarded attorneys fees pursuant to section Florida Statutes We reverse the dismissal of the complaint and the award of attorneys fees The issue in the Greene-Dorman case is whether the second amended complaint states a cause of action on any ground The complaint sets forth the factual background out of which both lawsuits arose In Wright administered a treatment called a caudal epidural block to Leon Donnan for the purpose of alleviating his lower back pain During the course of these treatments or thereafter both retinas of Leons eyes hemorrhaged resulting in impaired vision The Donnans retained Yurko to represent them in bringing a malpractice suit against Wright The case was tried before a jury for two weeks and resulted in a favorable verdict for Wright Wright then brought suit against the Dormans and Greene in essence alleging that the Donnans conspired with Greene to bring the malpractice case with malice and intent to injure Wright and without any basis or probable cause to have done so In addition there are also allegations that Donnans and Greene conspired to and gave false and pe1jured testimony at the trial with the intent to injure Wright Wright alleged damages of lost business profits suit money and attorneys fees incurred by defending the suit Iiestt;::;w ext Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d The complaint is exceedingly prolix and disorganized and therefore we have had to summarize its content rather than quote it as we would have preferred to do Wrights complaint against Yurko contains essentially the same allegations except it claims Yurko instigated the suit and conspired with others to injure Wright by presenting perjured testimony A third count alleges a cause of action of libel and slander against Yurko for statements he and his witnesses made in connection with the malpractice case W"th regar to c1v1 smts 1or pequry libel slander defamation and the like based on statements made in connection with judicial proceedings this stat has long followed the rule overwhelmingly adopted by the weight of authority,2 that such torts committed in the course of judicial proceedings are not actionable Perl Omni International of Miami Ltd So.2d Fla 3d DCA Sailboat Key Inc Gardner So.2d Fla 3d DCA Bencomo Morgan So.2d Fla 3d DCA State Tillett So.2d Fla 2d DCA Parties witnesses and counsel are accorded absolute immunity as to civil liability with regard to what is said or written in the course of a lawsuit providing the statements are relevant to the litigation The reason for the rule is that although it may bar recovery for bona fide injuries the chilling effect on free testimony and access to the courts if such suits were allowed would severely hamper our adversary system Remedies for perjury slander and the like committed during judicial proceedings are left to the discipline of the courts the bar association and the state C.J.S Perjwy Restatement Second of Torts Am.Jur.2d Conspiracy Prosser Law of Torts 4th ed see S.A Robertson Industrial Ins Co So.2d Sussman Damian So.2d Fla 3d DCA Buchanan Miami Herald Publishing Co So.2d mce pnv1 ege ars Wrights causes of action against the Donnans Greene and Yurko for defamation it follows that there can be no actionable conspiracy to commit the same acts An actionable conspiracy requires an actionable underlying tort or wrong An act which does not constitute a basis for a cause of action against one person cannot be made the basis for a civil action for conspiracy Buchanan Miami Herald Publishing Company So.2d Kent Kent So.2d Fla 5th DCA Buckner Lower Florida Keys Hospital District So.2d Fla 3d DCA petition for review denied So.2d Therefore the counts in both lawsuits which attempt to allege a cause of action in defamation and conspiracy to commit defamation and/or perjury are insufficient as a matter of law and those causes of action were properly dismissed as to the Donnans Greene and Yurko See Bond Koscot Interplanetary Inc So.2d Fla 4th Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d DCA Fla.Jur.2d Conspiracy-Civil Aspects I I The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution This tort has its own special elements and defenses They are Id Prosser supra note at I I see Bencomo Morgan So.2d Fla 3d DCA I Leach Feinberg IOI So.2d Fla 3d DCA cert denied So.2d A criminal or civil judicial proceeding has been cmmnenced against the plaintiff in the malicious prosecution action the proceeding was instigated by the defendant in the malicious prosecution action the proceeding has ended in favor of the plaintiff in the malicious prosecution action the proceeding was instigated with malice without probable cause and resulted in damage to the plaintiff in the malicious prosecution action Kalt Doilar Rent-A-Car So.2d Fla 3d DCA If all of these elements of malicious prosecution are properly pleaded in a complaint the suit must be allowed to proceed Hopke OByrne So.2d Fla 1st DCA On the other hand if one element is not sufficiently pleaded the complaint should be dismissed Napper Krentzman So.2d Fla 2d DCA We think that Wright pleaded all of the required elements of malicious prosecution against the Dormans and Greene and therefore the lower court improperly dismissed the amended complaint Although verbose and stated in a conclusory fashion see Hopke Wright touched on each of the elements for malicious prosecution as well as for conspiracy to cmmnit malicious prosecution He alleged that the malpractice suit was filed without probable cause and with malice and intent to injure him it concluded in his favor and it resulted in special and general damages to him Wright further alleged that Greene conspired with the Donnans to bring the suit Since the complaint stated a cause of action for malicious prosecution the award of attorneys fees to Greene under section was improper Vogel Allen So.2d Fla 5th DCA SJ In the Yurko suit similar pleadings were taken beyond bare allegations Counsel for Yurko moved for summary judgment and attached an affidavit with exhibits seeking to show that Yurko researched and investigated the Dorman case and had a reasonable belief that Donnan had a tenable claim against Wright In his affidavit Yurko set forth the names and conclusions of four medical experts he consulted the medical books and treatises he read and a history of his consultations with Donnan Wright failed to file any counter-affidavits in opposition to the summary judgment motion Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d Attempting to create a fact issue which would preclude summary judgment and thereby avoid the consequences of failing to file any counter-affidavits or depositions,8 Wright argues that Yurkos affidavit should be disregarded because it fails to state it was made on the basis of Yurkos personal knowledge In order to bar affidavits based on hearsay Florida Rule of Civil Procedure requires that affidavits supporting or opposing summary judgment shall be made on the basis of personal knowledge Cf Johnson City of Pompano Beach So.2d Fla 4th DCA In this case although the preamble to Yurkos affidavit omitted the introductory statement that he was making it based on personal belief and knowledge it is clear from the statements made in the body of the affidavit that they were based on his own knowledge He listed his own conversations research and activities he took regarding his preparation for and the filing of the malpractice suit Since there could be no other source for the statements other than his personal knowledge we think Yurkos affidavit was in proper form The comment to Florida Rule of Civil Procedure states the requirement that it the affidavit show affirmatively that the affiant is competent to testify to the matters stated therein is not satisfied by the statement that he has personal lmowledge there should be stated in detail the facts showing that he has personal mowledge ll01 The effect of Yurkos motion for summary judgment was to shift the burden to Wright to come forward and show with proper proofs that a material question of fact existed as to whether Yurko brought the suit without probable cause Noack B.L Watters Inc So.2d Fla 5th DCA Hardcastle Mobley So.2d Fla 3d DCA Probable cause in the context of a civil suit is measured by a lesser standard than in a criminal suit But obviously less in the way of grounds for belief will be required to justify a reasonable man in bringing a civil rather than a criminal suit The instigator need not have the same degree of certainty as to the facts or even the same belief in the soundness of his case and that he is justified in bringing a civil suit when he reasonably believes that he has a good chance of establishing it to the satisfaction of the court or jury He may for example reasonably submit a doubtful issue of law where it is uncertain which view the court will take Tennination of the proceeding in favor of the plaintiff against whom it is brought is no evidence that probable cause was lacking since in a civil action there is no preliminary detennination of the sufficiency of the evidence to justify the suit Footnotes omitted Prosser Law of Torts at 4th ed To establish probable cause it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding but rather that he had a reasonable belief based on facts and Thomson Reuters No claim to original U.S Government Works Wright Yurko So.2d circumstances known to him in the validity of the claim Goldstein Sabella So.2d Gallucci lvlilavic So.2d In Central Florida Machine Company Inc Williams So.2d Fla 2d DCA petition for review denied So.2d a similar case against an attorney was disposed of in his favor by summary judgment As in the instant case the plaintiff in Williams had filed nothing in opposition to a motion for summary judgment The appellate court held that summary judgment was proper because the probable cause determination was at that juncture a question of law and the affidavits were sufficient to show that the attorney conducted a reasonable investigation of the facts prior to filing suit and had developed sufficient infonnation to support a reasonable honest belief in a tenable claim Id at The court observed that if attorneys were required to meet too high a standard it could conceivably prohibit attorneys from pursuing and establishing new causes of action and could hinder the development of new legal theories Id It suggested the same standard as that adopted to test frivolous lawsuits and the award of attorneys fees pursuant to section should govern whether suits are filed without probable cause in the context of malicious prosecution suits City of Pensacola Owens So.2d Ill We need not in this case adopt such a low standard The affidavit here shows Yurko reasonably researched and investigated his case and had a tenable theory to present to the court and jury The fact that the case went to the jury and survived motions for summary judgment and directed verdict which were most surely made while not conclusively proving probable cause 1s a strong indication of a substantial case Cf Pinkerton Edwards So.2d Fla 1st DCA K-Mart Corporation Sellars So.2d Fla 1st DCA Since one of the essential elements for malicious prosecution filing without probable cause was established as lacking in the suit against Yurko summary judgment was properly entered in his favor Kalt We recognize that our determination that Yurko had probable cause to file the malpractice suit may have a binding effect in Wrights suit against the Donnans and Greene However reliance on advice of counsel is not an absolute defense in a malicious prosecution case Further pleadings in the Dorman-Greene case will be required to raise this affirmative defense and Wright may be able to challenge its application in his reply or facts raised in the record as that case progresses Therefore final disposition by us on the basis of the amended complaint and motion to dismiss would be premature in the Dorman-Greene case Collateral estoppel may be applicable See United Thomson Reuters No claim to original U.S Government Works Wrightv Yurko So.2d States Fidelity and Guar Co Odoms So.2d Fla 5th DCA Advice of counsel is a defense to an action predicated upon malicious prosecution only in the event there has been a full and complete disclosure made to the attorney before his advice is given and followed Glass Parrish So.2d see Paulk Buczynski So.2d Fla 2d DCA Prosser supra note at AFFIRMED AS TO APPEAL NUMBER REVERSED AS TO APPEAL NUMBER AND REMANDED End of Document COW ART concurs DAUKSCH concurs in part dissents in part with opinion DAUKSCH Judge concurs in part dissents in part I would affirm the trial court in all respects Thomson Reuters No claim to original U.S Government Works Thomson Reuters No claim to original U.S Government Works Graham-Eckes Palm Beach Academy Inc Johnson So.2d Fla Weekly So.2d District Court of Appeal of Florida Fourth District GRAHAM-ECKES PALM BEACH ACADEMY INC a Florida corporation Appellant Warren JOHNSON Jr Appellee No I Jan In litigation relating to real property defendants filed counterclaim for intentional interference with contract for sale of land and slander of title The Circuit Court Palm Beach County Edward A Garrison entered judgment on pleadings against defendant on counterclaim and defendant appealed The District Court of Appeal held that absolute privilege normally accorded to pleadings applies even if complaint is wholly frivolous and filed to interfere with performance of contract for sale of property Affirmed West Headnotes Libel and Slander Defenses Malicious Prosecution Civil Actions Torts Contracts in General Absolute privilege normally accorded to pleadings applied even if complaint was wholly frivolous and filed to interfere with perfonnance of contract for sale of property instead of counterclaims for intentional interference with contract for sale of land and slander of title proper cause of action for filing complaint was one for malicious prosecution End of Document Attorneys and Law Firms Larry Klein of Klein Walsh P.A and McKeown Gamot Phipps West Palm Beach for appellant Michael Davis of Davis Hoy Carroll Isaacs P.A West Palm Beach for appellee Opinion PERCURIAM Graham-Eckes Palm Beach Academy Inc appeals from the entry of a final judgment on the pleadings on its counterclaim for intentional interference with a contract for the sale of land and slander of title We affirm Appellant contends that the 1:1bsolute privilege normally accorded to pleadings should not apply where the complaint is wholly frivolous and filed to interfere with the performance of a contract for the sale of property While appellants argument is persuasive we hold that its proper cause of action wo.uld have been one for malicious prosecution and affirm on the authority of Procacci Zacco So.2d Fla 4th DCA AFFIRMED DELL STONE and WARNER JJ concur Parallel Citations Fla Weekly Thomson Reuters No claim to original U.S Government Works Thomson Reuters No claim to original U.S Government Works 676Propriety of Purpose Restatement Second of Torts Commenr Reporter Note Cm;c Citations by Jurisdiction Restatement Second of Torts Restatement of the Law Torts Database updated October Restatement Second of Torts Division Unjustifiable Litigation Chapter Wrongful Use of Civil Proceedings Prop1iety of Purpose subject a person to liability for wrongful civil proceedings the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based Comment a The rule stated in this Section is applicable to determine the liability of one who procures the initiation of civil proceedings as well as to determine the liability of a person who initiates them On continuation of civil proceedings see Comment The purpose for which the proceedings are initiated or continued becomes material only when it is found that they were initiated without probable cause See The impropriety of purpose dealt with in this Section is only one of the elements necessary to a cause of action for wrongful civil proceeding In this action the plaintiff must also prove that the proceedings terminated in his favor on which see Comm.entj to and that they were initiated without probable cause on which see There are numerous situations in which the civil proceedings are initiated primarily for an improper purpose Some of them have been established as patterns and may be described in some detail The following are illustrative The first situation arises when the person bringing the civil proceedings is aware that his claim is not meritorious Just as instituting a criminal proceeding when one does not believe the accused to be guilty is not acting for the proper purpose of bringing an offender to justice see Comment so instituting a civil proceeding when one does not believe his claim to be meritorious is not acting for the purpose of securing the proper adjudication of his claim One may believe that his claim is meritorious even though he knows that the decisions in the state do not sustain it if he believes that the law is potentially subject to modification and that this case may be a suitable vehicle for producing further development or change He may believe that his claim is meritorious if he believes that the actual facts warrant the claim but recognizes that his chances of proving the facts are meager He cannot believe that the claim is meritorious however if he knows that it is a false one based upon manufactured or perjured testimony or if he realizes that the adjudication will not be in his favor unless the court or jury is misled in some way He is then abusing the general purpose of bringing civil proceedings and is not seeking a proper adjudication of the claim on which the civil proceeding is based APPE DlX 676Propriety of Purpose Restatement Second of Torts Tile seco.nd situation arises when the proceedings are begun primarily because of hostility or ill will This is malice in the literal sense of the term which is frequently expanded beyond that sense to cover any improper purpose Thus if the purpose gf the civil proceeding is solely to harass the defendant it is frequently said that this amounts to malice But it is not necessary to prove that the harassment was itself motivated by ill will A third situation arises when the proceedings are initiated solely for the purpose of depriving the person against whom they are brought ofa beneficial use ofhis property An instance of this type occurs when the proceedings attacking the title to the land owned by the defendant are for the purpose not of adjudicating the title but of preventing the owner from selling his land See Illustration A fourth situation arises when the proceedings are initiated for the purpose of forcing a settlement that has no relation to the merits of the claim This occurs for example when a plaintiff knowing that there is no real chance of successful prosecution of a claim brings a nuisance suit upon it for the purpose of forcing the defendant to pay a sum of money in order to avoid the financial and other burdens that a defense against it would put upon him A further instance occurs when the proceedings are based upon alleged facts so discreditable as to induce the defendant to pay a sum of money to avoid the notoriety of a public trial A fifth type of situation arises when a defendant files a counterclaim not for the purpose of obtaining proper adjudication of the merits of that claim but solely for the purpose of delaying expeditious treatment of the original cause of action In all of these situations if the proceedings are also found to have been initiated without probable cause the person bringing them may be subject to liability for use of wrongful civil proceedings Illustration Illustration I A has purchased Blackacre at a sheriffs sale subject to a statutory right ofredemption in the original owner of Blackacre is negotiating a mortgage on Whiteacre in order to put himself in funds in order to exercise his right of redemption A brings an action against attacking Bs title to Whiteacre in order to prevent the redemption of Blackacre The purpose for which the action is brought is improper Ancillary proceedings Ancillary proceedings are improperly brought if they are brought for a purpose that would make the bringing of the principal proceedings improper Attachment may also be improperly obtained ifit is intentionally so obtained as to prevent the defendant from releasing his goods by the method provided by Jaw for that purpose Illustrations Illustrations A brings an action against the Theatrical Company to recover a disputed debt The theatrical properties of the company are attached at a time intentionally selected by A to make it impossible to obtain their release by filing a bond A also knows that the theatrical company must have immediate possession of its properties in order to fill its scheduled engagements The attachment is obtained for an improper purpose In order to prevent from selling a lot of land to and thus to force to sell the land to him A causes the attachment of the land in question The attachment is obtained for an improper purpose Reporters Note See as to motives of ill will or lack of belief in any possible success of the action Southwestern Co Mitchell Ga S.E Nyer Carter A.2d Wills Noyes Mass Pick Pangburn Bull I Wend N.Y Yelk Seefeldt Wis.2d N.W.2d cf Robinson Goudchauxs So.2d negligence amounting to reckless indifference 676Propriety of Purpose Restatement Second of Torts As to ulterior purposes see Southwestern Co Mitchell Ga S.E I Commercial Credit Corp Ensley Ind.App N.E.2d Malone Belcher Mass N.E Burhans Sanford Brown Wend N.Y Malice may be inferred from lack of probable cause Stewart Sonneborn U.S L.Ed National Surety Co Page F.2d rehearing denied F.2d Cole Neaf F.2d Dillon Nix Ala.App So.2d Hooke Equitable Credit Corp Md.App A.2d Krzyszke Kamin Mich N.W Henderson Cape Trading Co Mo S.W Crouter United Adjusters Inc Or P.2d Nagy McBurney R.I A.2d U.S C.A.JO S.D.lnd D.Kan S.D.N.Y E.D.Pa Ariz Cal Cal.App Conn Hawaii App Ind lnd.App lowa Kan Ky Ky.App Mass Mass.App Mich Mo Mo.App N.H N.J.Super N.M Or.App Pa Pa.Super Utah App Case Citations by Jurisdiction U.S 676Propriety of Purpose Restatement Second of Torts Cit in diss op After finding that there was no basis in fact for the copyright infringement action and request for a temporary restraining order TRO filed by a publisher of business directories through its counsel against a competitor the district court imposed monetary sanctions under Federal Rule of Civil Procedure against the publisher on the ground that it had failed to make a reasonable inquiry before its president signed the TRO application The court of appeals affirmed in part Affirming this court held in part that Rule applied to represented parties and that the certification standard for a party was an objective one of reasonableness under the circumstances The dissent argued that it was an abuse of discretion to sanction a represented litigant who acted in good faith but erred as to the facts and that under the majoritys interpretation Rule placed on those represented parties who signed papers subject to the Rule duties far exceeding those imposed by state tort law which required a plaintiff to prove malice or improper purpose to recover for malicious prosecution or abuse of process Business Guides Chromatic Communications Ent U.S S.Ct L.Ed.2d Quot in case cit in disc Dissatisfied homeowners who refused to pay for home repairs challenged the constitutionality of a state statute that permitted the contractors to obtain an ex parte prejudgment attachment of their home On remand the district court upheld the statute as applied Affinning this court held inter alia that the statutes failure to require the contractors to post a security bond was not constitutionally defective because the homeowners could have brought a counterclaim for damages under the states vexatious litigation statute Shaumyan ONeill F.2d Quot in sup cit in case quot in fin com cit and quot in sup Guarantor of borrowers notes brought a malicious-prosecution action against lender after a state court found guarantor not liable in lenders suit against him on the debt because the payments that borrower had tendered to lender had been sufficient to pay off the underlying guaranteed notes but had been misapplied by lender to pay off a different unguaranteed debt owed by borrower to a financial institution related to lender The district court granted summary judgment for lender Reversing and remanding this court h_eld inter alia that a genuine issue of material fact existed as to whether lender brought its suit on the guaranfy against guarantor for an improper purpose and thus with malice for purposes of guarantors malicious-prosecution claim pursuing a lawsuit for the purpose of forcing a settlement unrelated to the claims underlying merits was improper Stokes Southern States Co-op Inc F.3d Com cit in disc War veterans brought a claim for wrongful use of civil proceedings WUCP inter alia against officer of the California Department of the Veterans of Foreign Wars of the United States whose underlying defamation suit against them was voluntarily dismissed with prejudice The district court dismissed veterans complaint Affinning in part this court held inter alia that the WUCP claim failed for lack of a plausible allegation of an improper purpose outside the resolution of the defamation claim there were no factual references or allegations that the officers earlier defamation suit was filed for a purpose not commensurate with the proper adjudication of the complaint and instead the accusations veterans made that officer was using the case to try to get them to stop saying the things they were saying about him were precisely the kinds of things a plaintiff in the officers shoes would do in the regular course of and entirely consistent with a defamation claim Rusakiewicz Lowe F.3d S.D.Ind S.D.Ind.20 Cit and quot in case quot in disc Gas company sued county and county officials for violations of U.S.C alleging among other things that defendants decision to issue subpoenas in an attempt to determine whether plaintiff charged county for unnecessary work amounted to an __ abuse of process._ Entering summary judgment for defendants 676Propriety of Purpose Restatement Second of Torts on this count the court held in part that plaintiffs inability to establish that defendants initiated legal proceedings for an end other than that which they were designed to accomplish was fatal to its claim Chandler Natural Gas Corp Ban F.Supp.2d D.Kan Com cit but dist Son who was entrusted with his mothers power of attorney and who wrongfully secured mortgage on her property sued mortgagees assignee for inter alia malicious prosecution after mortgagees fraud action against him was dismissed Assignee moved for summary judgment Granting the motion the court held that son failed to prove mortgagees lack of probable cause for instituting the fraud action failed to prove malice and could not assert that the proceedings terminated in his favor where they were dismissed as time-barred Elaborating on the malice requirement the court noted that there was no evidence mortgagee went forward out of ill will knew its claim was not meritorious intended to deprive son of the beneficial use of his property or proceeded solely for purposes of delay Smith St Paul Fire and Marine Ins Co F.Supp S.D.N.Y Cit in fin Patentee sued a corporation for patent infringement of a carton intended to enclose and protect plastic juice containers The court granted defendants motion to transfer the case to the District of Massachusetts on the ground of convenience Stating that plaintiff took affirmative steps to seek to halt defendants business activities in Massachusetts by writing to defendants customers threatening dire consequences if they continued to distribute defendants competing product the court noted that issues of litigation misuse might be presented when threats of lawsuits including threats of suits for enforcement of intellectual property rights were made in bad faith with anticompetitive purpose or effect Big Baby Co Schecter F.Supp E.D.Pa Com quot in case cit in sup Website administrator sued two law students their lawyers and lawyers Jaw firms for among other things wrongful use of civil proceedings after he was dismissed from a prior action filed by students in connection with sexually explicit messages that were posted about them on the website Denying in part defendants motion to dismiss this court held inter alia that plaintiff sufficiently pied that defendants acted for an improper purpose when they filed the prior action against plaintiff for the purpose of coercing the settlement of unrelated claims against website and its owner despite knowing that plaintiff was not responsible for the messages joining a party over whom there was no probable cause in order to obtain concessions from a nonparty constituted an improper purpose Ciolli Iravani F.Supp.2d Ariz Quot in sup com cit and quot in disc An automobile insurer brought a wrongful-death action against a deputy sheriff who was involved in an accident in which the insured was killed Following settlement of that suit the sheriff sued the insurer for malicious prosecution and abuse of process The trial court granted summary judgment for the insurer on the abuse-of-process claim and the jury found for the plaintiff on the malicious-prosecution claim The intermediate appellate court reversed This court vacated and affirmed the trial courts decision holding that the facts of the case did not permit the appellate court to rule as a matter of law that the insurer had probable cause to initiate the wrongful-death action where the evidence permitted an inference by a jury that the case was filed not because the insurer believed it might be found meritorious but in order to intimidate the plaintiff and coerce him into settling for less than the insureds policy limits Bradshaw State Farm Mut Auto Ins Ariz P.2d 676Propriety of Purpose Restatement Second of Torts Cal Cit in ftn The defendant commenced a medical malpractice action against the plaintiff and others The court dismissed the complaint as to the plaintiff because it had not been filed within the applicable limitations period The plaintiff then brought this action for malicious prosecution and the defendant moved for summary judgment The trial court granted the defendants motion on the ground that the bar created by the statute in the underlying action did not satisfy the requirement in an action for malicious prosecution that there must have been a termination favorable to the defendant in the frrst action the plaintiff herein The appellate court affirmed and held that where the defendant herein had not prosecuted the underlying action for medical malpractice knowing that the term of the applicable statute of limitations had run the termination in the underlying action was done on technical and not substantive grounds and could not support an action for malicious prosecution Lackner LaCroix Cal.3d Cal.Rptr P.2d Cal.App Cal.App.1998 Com quot in case quot in disc Doctor who was denied hospital staff privileges sued hospital for inter alia malicious prosecution alleging that defendants executive committee recommended to its board of directors that plaintiffs application be denied and that a subsequent administrative proceeding initiated against plaintiff was initiated with malice The trial court dismissed the complaint Reversing and remanding this court held that defendant initiated a formal hearing when it sent plaintiff a letter informing him of its decision that the existence of probable cause could not be determined at this stage of the litigation and that plaintiffs allegations were sufficient to establish the element of malice Axline St Johns Hosp Health Cen Cal.App.4th Cal.Rptr.2d Cal.App.1987 Com quot in sup After an insurance adjuster intentionally withheld evidence that proved that a tenant was not responsible for a frre in a building the building owners insurer filed a subrogation claim against the tenant When it was later learned that the adjuster had withheld the information the tenant sued him for malicious prosecution The trial court entered judgment on a verdict awarding the plaintiff damages Affirming this court held that the defendant had exhibited malice because he lacked probable cause to claim that the tenant had caused the frre The court said that the adjuster knew that the action against the tenant was not meritorious because he realized that the insurer would not prevail unless the court or jury was misled Interiors Petrak Cal.App.3d Cal.Rptr Cal.App.1986 Cit in ftn A physician sued an attorney for malicious prosecution and intentional infliction of emotional distress after the attorney sued the physician for medical malpractice In the malpractice action the attorney represented a woman whose mother had hung herself while she was in a hospital and under the physicians care and a jury found for the physician In the present action the trial court granted the attorneys motion for summary judgment Reversing in part the court of appeals held that because the attorney filed suit based on inadequate investigations he had lacked probable cause to pursue the malpractice claim as judged by the objective standard of whether a prudent attorney would have considered the action to be tenable The court noted that in malicious prosecution cases it was the courts function to determine whether the defendant had probable cause not a jurys function The court also affirmed in part holding that the intentional infliction of emotional distress claim was properly dismissed because the attorney had an absolute privilege to make statements during judicial proceedings that the physician committed medical malpractice Williams Coombs Cal.App.3d Cal.Rptr Conn Cit in sup A towns director of the department of public works was arrested pursuant to warrants prepared by two police detectives on charges stemming from departments lubrication services contract with a lubrication service After being tried and acquitted director sued detectives for malicious prosecution and federal civil rights violations Jury found for 676Propriety of Purpose Restatement Second of Torts i director but trial court granted defendants judgment n.o.v Reversing and remanding this court held inter alia that trial court incorrectly determined that the doctrine of qualified immunity applicable to claims shielded defendants from liability as to directors malicious-prosecution claims It stated that because jury found in directors favor on his malicious-prosecution claims it necessarily found that defendants acted with malice and that this finding of malice was sufficient to defeat the qualified immunity defense Mulligan Rioux Conn A.2d Cit in ftn The former chairman of a municipal parking authority commission sued the city and its mayor for vexatious suit inter alia alleging that the mayor first instituted and then abandoned removal proceedings against him after he blocked adoption of revised parking authority bylaws and accused city and authority personnel of wrongful acts The trial court entered judgment on a jury verdict for the plaintiff Affirming in part reversing in part and remanding this court held inter alia that there was probable cause for the mayor to initiate some but not all of the charges and since the charges were logically severable the jury was free to impose liability against the mayor for the damages the invalid charges caused the plaintiff DeLaurentis City ofNew Haven Conn A.2d Hawaii App Hawaii Com cit in sup The plaintiff sued the sublessee of the plaintiffs property who had allowed three men to operate a business on the premises and had failed to pay rent The plaintiff later settled with one of the men When the other two men refused to cooperate the plaintiff sued and they counterclaimed and filed for bankruptcy The plaintiff then sued the defendants and their lawyer for malicious prosecution abuse of process and deceptive trade practices This court affirmed the entry of summary judgment in favor of the defendants It held that their prosecution was not malicious since the plaintiff had failed to prove that the defendants proceedings had been initiated with malice and filing a counterclaim and filing for bankruptcy were not abuses of process in the absence of evidence that the proceedings had been initiated for any purpose other than that which they were designed to accomplish Myers Cohen Hawaii App P.2d judgment reversed Hawaii P.2d Ind Cit in disc cit and quot in case quot in disc Lawyers for personal injury plaintiff filed is pend ens notice against real estate owned by defendants Lawyers then filed a second is pendens notice despite a trial court ruling that they were not entitled to do so Alleging that the existence of the second notice caused the sale of the property to fall through defendants lender sued lawyers for inter alia abuse of process The trial court entered summary judgment for lawyers and the intermediate appellate court affirmed Reversing and remanding this court held in part that summary judgment was inappropriate where material factual issues existed as to lawyers motivation in filing the second is pendens notice National City Bank Indiana Shortridge N.E.2d supplemented N.E.2d Ind.App Ind.App.1981 Cit and quot in part in disc and com cit in disc A physician filed a malicious prosecution action against an attorney who instituted a malpractice action against the physician on behalf of his client The trial court set aside the jurys verdict in favor of the physician and the physician appealed The court stated that the plaintiff in an action for malicious prosecution has the burden of proving that the defendant instituted or caused to be instituted prosecution against tl1e plaintiff that the defendant acted maliciously in doing so that the prosecution was instituted without probable cause and that the prosecution terminated in the plaintiffs favor The court noted that any standard of probable cause for purposes of a malicious prosecution action must insure that the attorneys duty to his client to present his case vigorously and in a manner as favorable to the client as rules of law and professional ethics will permit is preserved mere negligence in asserting a claim is not sufficient to subject an attorney to liability for malicious prosecution for bringing of the suit The court held that where the physician failed to meet his burden of proving lack of probable cause the evidence was uncontroverted that the attorney 676Propriety of Purpose Restatement Second of Torts believed he had a potential claim against the physician for his involvement in the clients injuries and the attorneys belief that the clients claim was tenable was a reasonable one the trial courts setting aside of the verdict in favor of the physician on the ground that there was probable cause to bring the suit for medical malpractice was proper Accordingly the trial courts judgment was affmned Wong Tabor N.E.2d Iowa Iowa Cit and quot in disc com cit in disc Two physicians sued an attorney for malicious prosecution and abuse of process following the dismissal of a medical malpractice suit that the attorney had brought against the physicians on behalf of his client The trial court dismissed the physicians petition Affirming this court held that the attorney was not liable for malicious prosecution because he had had probable cause in initiating and continuing the malpractice suit and he had not acted with malice or an improper purpose in doing so Wilson Hayes N.W.2d Kan Cit in sup and com and Illus thereto quot in sup Plaintiff physician against whom a medical malpractice action had been dismissed without prejudice brought suit against his former adversaries attorneys for damages based upon two theories The first claim was based upon malicious prosecution of a civil action and the second claim was based upon simple negligence Counsel for plaintiff commenced the discovery process in the action by filing requests for admissions interrogatories and requests for production of documents All of this discovery was opposed by defendant attorneys and never answered Thereafter all the defendant attorneys filed motions to dismiss The lower court sustained the motions to dismiss and plaintiff appealed The supreme court held that the district court was correct in dismissing the plaintiffs second cause of action based upon a theory of professional negligence because the established law is that an attorney cannot be held liable for the consequence of his professional negligence to his clients adversary The remedy provided a third-party adversary is solely through an action for malicious prosecution of a civil action The court reversed the judgment of the lower court as to the dismissal of the plaintift"s claim based upon a theory of malicious prosecution ofa civil action The case was remanded to the trial court to permit the parties to proceed with discovery so that the facts could be developed and the rights of the parties determined The court held that plaintiffs claim had properly stated the elements of a cause of action for malicious prosecution The courts opinion reviewed and applied the general principles of law to be followed in determining liability in an action for wrongful use of civil proceedings commonly known as malicious prosecution relying largely on the relevant sections of the Restatement The court held an attorney may be held liable in damages for wrongful use of civil proceedings where he initiates or continues an action for his client without probable cause and primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based and in determining probable cause in a malicious prosecution action brought against an attorney a jury may properly consider not only those facts disclosed to counsel by the client but also those facts which could have been learned by a diligent effort on the attorneys part Nelson Miller Kan P.2d appeal after remand Kan P.2d I Ky Cit in cone op Insureds sued insurer for bad-faith dealing and violations of the Unfair Claims Settlement Practices Act after insurer defended them against a wrongful-death claim but simultaneously sought a declaratory judgment to determine coverage The trial court granted insurer summary judgment holding that the legal questions of reformation and agency raised by insurer in filing the declaratory judgment action were fairly debatable The court of appeals reversed holding that insureds were entitled to pursue the bad-faith action This court reversed and reinstated the trial courts order holding that the insurers conduct did not rise to the level required to sustain an action for bad faith The insurer provided a defense for insureds and the claim proceeded without delay Simultaneously with the lawsuit the insurer chose to maintain an independent action to determine its coverage liability thus properly electing to explore its legal remedy A concurrence argued that the factual allegations in this case did not state a cause of action under any common law or statutory theory Although insureds claimed that the insurer lacked probable cause to bring the declaratory judgment action they made no 676Propriety of Purpose Restatement Second of Torts claim that it was commenced for any purpose other than to adjudicate whether the insurer owed a defense and liability coverage for the claims arising out of the accident Guaranty Nat lns Co George S.W.2d Quot in disc cit in case quot in disc Social workers who had been sued by a mother whose child was taken from her covertly and without notice sued the mother and her attorney for malicious prosecution The attorney had been advised that no legal orders had been issued regarding the taking of the child The trial court awarded judgment on a jury verdict against the attorney This court reversed holding that the trial court after erroneously submitting the issue of probable cause to the jury erroneously made a separate post-trial judicial finding that the attorney lacked probable cause to file the underlying lawsuit The court stated that the attorney had made a reasonable effort to investigate the basis of the mothers claim where he had been denied access to court files and was told that no court order was ever issued against the mother Prewitt Sexton S.W.2d Ky.I Quot in disc cit in disc A credit union obtained a judgment against a man on a note that he had signed but it mistakenly executed the judgment upon a property owned by the mans father The father sued the credit union and its attorney for inter alia wrongful execution and negligence The trial court entered a directed verdict on all claims except for the wrongful-execution action which went to trial and resulted in a jury verdict for the defendants The court of appeals reversed and remanded to have the trial court reconsider the issue of negligence This court affirmed the court of appeals in part but reversed the portion of the opinion that remanded for examination of the negligence issue It held that the standards of wrongful execution rather than the ordinary elements of negligence applied in cases involving suits by opposing litigants or nonparties against the attorney in that suit It also concluded that any error as to jury instructions was not preserved in that the plaintiff did not object to instructions that required a finding of malice Mapother and Mapother P.S.C Douglas S.W.2d cert denied U.S S.Ct L.Ed.2d Ky.App Cit in disc A police officer who was sued for civil rights violations by an arrestee sued the arrestees attorneys for malicious prosecution The trial court granted the attorneys motion for summary judgment on the grounds that the officer had failed to file a response to the motion and that the civil rights suit had not been terminated on the merits in the officers favor Affirming this court held that the dismissal of the arrestees claim against the officer on statute-of-limitations grounds was not a termination of the proceedings in the officers favor Alcorn Gordon S.W.2d Mass Cit in case quot in diss op Former CFO of company brought claim for interference with advantageous future relations against company director alleging that director interfered with the prospect of his continued employment beyond the expiration of his contract by threatening in a conversation with companys CEO to physically attack him thereby making him too afraid to return to company The trial court denied defendants request for an instruction on actual malice and entered judgment on a jury verdict for plaintiff Reversing and remanding this court held inter alia that plaintiff had to prove the improper motive or means element of the tort by showing that defendant acted with actual malice unrelated to a legitimate corporate interest The dissent argued that application of the actual-malice standard to this tort was unhelpful and confusing and noted that this court had recently rejected the use of malice as an element of the tort of malicious prosecution Blackstone Cashman Mass N.E.2d Cit and quot in sup and adopted com cit in sup com cit and quot in sup After insurer paid a substantial workers compensation settlement to an injured worker and then brought medical-malpractice subrogation action against workers neurologist alleging that neurologist failed to warn worker of certain dangers neurologist sued insurer and its attorney for in part malicious prosecution The trial court granted summary judgment for defendants The appeals court 676Propriety of Purpose Restatement Second of Torts affirmed This court reversed and remanded holding inter alia that plaintiff raised issues of fact in regard to the improper purpose element of his malicious-prosecution claim which the court derived from the Restatement and adopted in place of the element of malice the court pointed to numerous facts in the record that suggested that insurer knew its claim was not meritorious including its own expert neurologists opinions that worker was at fault for the accident Chervin Travelers Ins Co Mass N.E.2d Mass.App Mass.App.2006 Com cit in diss op After insurer paid a substantial workers compensation settlement to an injured worker and then brought medical-malpractice subrogation action against workers neurologist alleging neurologist failed to warn worker of certain dangers neurologist sued insurer and its attorney asserting a claim for inter alia malicious prosecution The trial court granted summary judgment for defendants This court affirmed based on plaintiffs failure to show the required element of malice The dissent argued that plaintiff presented sufficient evidence on the question of malice because a factfinder could conclude that commencement of insurers action with knowledge that a necessary component namely workers cooperation would not be forthcoming was intended to force a settlement by professional embarrassment of a medical doctor Chervin Travelers Ins Co Mass.App.Ct N.E.2d reversed in part Mass.App.Ct N.E.2d See case above Mass.App.1993 Com cit in disc Vendors and prospective purchasers of land sued an adjoining landowner for tortious interference with the purchase agreement after the adjoining landowner claimed ownership of the land by adverse possession causing the purchasers to lose their financing the adjoining landowner counterclaimed to establish ownership by adverse possession Affirming a judgment for the plaintiffs the appeals court held inter alia that the trial courts conclusion that the adjoining landowner lacked any reasonable belief in the validity of his adverse possession claim and that his assertion of it was a tactical means of hindering plaintiffs transaction constituting tortious interference with contract was not clearly erroneous Peck Bigelow Mass.App.Ct N.E.2d Mich Cit in fin cit in fin in cone op The plaintiff a physician brought an action against the defendant attorneys alleging that the defendants in filing and pursuing a medical malpractice suit against the physician that resulted in a directed verdict of no cause of action were guilty of negligence abuse of process and malicious prosecution The trial court entered judgment for the defendant lawyers the intermediate court affirmed in part and reversed and remanded the malicious prosecution claim Both parties appealed and this court held that the defendants were not guilty of negligence because a lawyer has no duty in favor of the adversary of his client to create such a duty would create an unacceptable conflict of interest The court also found for the defendants with respect to the abuse of process claim and the malicious prosecution claim The court reasoned that malicious prosecution was not appropriate because the physician had failed to plead any special injury which was required to maintain that action Accordingly the court reversed the intermediate courts denial of summary judgment for the defendants on the malicious prosecution claim Several justices filed dissenting opinions with regard to the malicious prosecution argument They asserted that the special injury requirement was outdated and suggested that a malicious prosecution suit should be available when the elements of malice and lack of probable cause for a successful suit exist Friedman Dozorc Mich N.W.2d Mo Quot in sup After the plaintiff had entered into a contract with the defendant for services a dispute arose between the parties The plaintiff sued charging malicious prosecution after prevailing in a suit brought by the defendant The trial court held for the plaintiff and awarded actual and punitive damages The intermediate appellate court affirmed Reversing this court stated that malice in law as defined by statute rather than the higher standard of legal malice which required proof 676Propriety of Purpose Restatement Second of Torts of mental state satisfied the element of malice required to sustain a civil malicious prosecution action Further an award of punitive damages in a malicious prosecution action required a finding that the defendant acted with an improper motive Proctor Stevens Employment Services lnc S.W.2d Mo I Quot in part A broker brought an action against two insurance companies for the wrongful initiation of a civil action against him based on allegations that he had conspired with an insurers employee to use confidential information gained in relation to the insurers business in order to divert business to other companies After the trial court entered judgment for the broker awarding actual and punitive damages the insurers appealed on the grounds that there was insufficient evidence to support the verdict and that the verdict was excessive The court affirmed holding that the evidence when viewed in the light most favorable to plaintiff supported the jurys finding that the defendants lacked probable cause defined as the reasonable belief in the truth of the facts alleged and the reasonable belief in the legal validity of the claim asserted to bring the action The court stated that under the circumstances where the defendants inadequately investigated plaintiffs conduct before initiating action a submissible case on malice was made out and the awards of actual and punitive damages were not excessive The dissent argued that the majority failed to distinguish between the quantum of proof of probable cause required to defend the initiation of a civil as opposed to a criminal prosecution from a charge of malicious prosecution and would remand for retrial because plaintiff had failed to make a case against the defendants of lack of probable cause Haswell Liberty Mut Ins Co S.W.2d Mo.App Com cit generally in disc In a prior action real estate purchasers sued the seller alleging that he had misrepresented the acreage of the estate and had failed to make repairs After the court found for the seller the purchasers filed numerous pleadings accusing the seller of perjury and other crimes In the sellers subsequent suit for malicious prosecution the trial court awarded the seller actual and punitive damages The court of appeals affirmed holding that there was sufficient evidence to conclude that the purchasers had neither reason to believe they asserted a valid claim against the seller nor probable cause to charge the seller with perjury or fraud and that because a lack of probable cause was shown the jury could infer malice The court noted that it had previously declined to adopt the Restatement definition of malice in civil suits and held that the instruction given on malice in law authorizing a punitive damages award was correct Mullen Dayringer S.W.2d N.H Cit in disc A company sued its salesman and his attorney in separate actions for malicious prosecution This court affirmed in part and reversed in part dismissals on the ground of collateral estoppel holding inter alia that the action against the attorney was properly dismissed under the doctrine of res judicata as the dismissal of an earlier suit by the companys president against the attorney for failure to state a cause of action was a dismissal on the merits The court also held however that the company was not collaterally estopped from suing the salesman as an action for malicious prosecution against an attorney had different legal standards than a similar action against a client ERG lnc Barnes N.H A.2d N.J.Super N.J.Super.1987 Cit in disc A wife sued for malicious prosecution the individual and corporate defendants who named her as a party to a suit against her husband for embezzlement alleging that the defendants were liable for wrongful use of civil proceedings The trial court granted the defendants motions for summary judgment Affirming this court held that the wifes arguments were without merit because the defendants had adequate probable cause on the facts to bring the lawsuit and the plaintiff failed to establish actual malice on the part of the defendants she did not prove that they initiated the suit against her primarily for a purpose other than that of securing the proper adjudication of the claim on which it was based Westhoff 676Propriety of Purpose Restatement Second of Torts Kerr S.S Co Inc N.J.Super A.2d certification NJ A.2d N.M Quot in case quot in disc cit in disc com cit in disc Former convenience-store manager sued stores operator for abuse of process and malicious prosecution after defendant dismissed a tort action it had previously filed against plaintiff The trial court entered summary judgment for defendant and the intermediate appellate court affinned Reversing and remanding this court held that because of the many similarities and tremendous overlap between the torts of abuse of process and malicious prosecution they would be consolidated into one tort known as malicious abuse of process that under the new tort a plaintiff was required to establish both a misuse of the power of the judiciary which could be proven by showing that the defendant filed a complaint without reasonable cause or engaged in some sort of conduct such as fraud or extortion that would formerly have been actionable under the tort of abuse of process and a malicious motive that proof of special damages was not required and that material factual issues existed as to whether defendant acted maliciously here De Yaney Thriftway Marketing Corp NMSC N.M P.2d cert denied U.S S.Ct L.Ed.2d Or.App Com cit in disc Plaintiff sued defendant for wrongful initiation of a civil proceeding following dismissal of defendants libel action against plaintiff The trial court granted defendants motion for a directed verdict Reversing and remanding this court held that the trial court erred in directing a verdict because a jury could find that defendant commenced and prosecuted his libel action for a primary purpose other than adjudication of his claim The court stated that there was evidence that defendants continuation of the action was without probable cause since once plaintiffs counsel informed defendant that the letter plaintiff had sent defendant calling him a liar had not been published a question of fact was raised whether defendant should have investigated before continuing with the action Wroten Lenske Or.App P.2d Pa Com quot in appendix to per curiam op A common pleas court judge filed a formal complaint against a state supreme court justice asserting inter alia misconduct by the justice in allegedly pursuing an appeal from the grant of variances to a developer to coerce an excessive settlement from the developer rather than to enforce the zoning laws The Judicial Inquiry and Review Board recommended to this court that the justice receive a public reprimand on the basis of an ex parte communication with the lower court judge relating to a matter pending before her and that the charge relating to the justices pursuit of the zoning appeal be dismissed The court accepted the Boards recommendations and report which found inter alia that the justices zoning appeal did not constitute abuse of process because the justice had the right and standing to appeal and every expectation of success Matter of Larsen Pa A.2d cert denied U.S S.Ct L.Ed.2d Pa.Super Pa.Super.1984 Com quot in sup The plaintiff appealed from a judgment for an attorney in this action for malicious use of process The judgment was based on preliminary objections in the nature of a demurrer This court reversed The defendant allegedly filed a caveat to the probate of a will later voluntarily dismissed to extract an unwarranted settlement from the executor and principal beneficiary Allegedly the defendant acted maliciously and without probable cause knowing that those on whose behalf he acted had no standing to contest the probate This court held that because the plaintiff alleged that the defendant without probable cause instituted a civil suit in order to extort a settlement which suit terminated in the plaintiffs favor the plaintiff stated a cause of action for ll ll se o_fprocess ff Stewart Pa.S,11pe_ _5 676Propriety of Purpose Restatement Second of Torts A.2d Utah App Utah Cit in fin Prospective lessee sued lessor to specifically enforce as a commercial lease agreement a document containing basic lease provisions or in the alternative to recover damages for breach of contract Lessor counterclaimed for abuse of process Affirming the trial courts dismissal of lessors counterclaim this court agreed with lessees contention that the counterclaim was for malicious prosecution or wrongful bringing of civil prosecution rather than for abuse of process and held inter alia that lessees legal position did not exhibit a lack of probable cause or a purpose other than securing a proper adjudication of its claims Browns Shoe Fit Co Olch P.2d End of DonnlltII lwmson Rcu1crs claim to rigi11:il US Cic rnmcnr Works
