Filing Electronically Filed PM JEFFREY EPSTEIN Plaintiff vs SCOTT ROTHSTEIN individually BRADLEY EDWARDS individually and L.M individually Defendant IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO SUPPLEMENTARY SUBMISSION IN SUPPORT OF EDWARDS MOTION FOR RECONSIDERATION Counter-Plaintiff Bradley Edwards hereby submits the attached appellate brief in further support of his pending motion for reconsideration of the Cornis announced intention to grant summary judgment in favor of the Counter-Defendant Jeffrey Epstein Corn1ter-Plaintiff adopts all legal arguments contained within the attached appellate brief which brief relates directly to the issue of whether the litigation privilege may properly be applied to bar claims 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 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 I5K7C:I 9O U3 Cn qrr qr q??r?q 9qr CTX G5 qr CX rC l0 WS zN pf1 ODV8L?m jC1DxV CTX CTX A qr 10Cy rYY Ң??P?V CTX C"C rqM?rq?q?qr qr CTX YY Jb?C.y CTX CTX GG4 A A G5 C.C M??r 10Cy rq YY C?J?yO c/XE?lgF GM??H p?ݡG Dp9Oh CTX CTX CJ4 I J6 CJ4 CK qrrM?q qq 9/CX?o CX qYqr rC dd?Z c6S ttcx A CTX CTX 10Cy rq rqYY X?qiX:4 3J Db ZH uD-8 1g?BH I vS 7Oo7u E?K?O J6 UJP U0 UT??ʴ UT UT UT O(p U(u UF1 iZ qr?r CX CX Yr zKW:E A K5M P-M UW VW L1J KJ56 N/Q SQ rC 6J ߵl ߵl 5TZ w8ĥDG oj?K _4 N)?Y Hp pRqc?W26 vz?WBrz?ZB??3X H4 CTX A CTX X4 U5 P8 5D qr qr 10Cy qr YY Mo?ANp D01jJ 9F bzEV 4O 8V CTX O!o CTX KK AA qr A C5 qr rYY 1A?CC V9 a c?F CTX A G5 qr EeD?M CTX 9?rY 10Cy rq qY ȠX1 a f??B CTX 9F I CTX 6D N?qr rrqq qC O?J RmA??b"0 M?.F q?D B?G CTX CTX F4 d6P A F4 qr rYY 4G AV8 CTX UY UL0 U0 U0 U0 UF UF UFAGA UA UA UAL UL UL UL UL UL UL U7 U7 U7 U7 U7 U7 U7 2EH GTU U/U OUoU UV G1 CTX TUV 1G 7A UA UAL X7 U7 U7 U77XL UL UL ULLYX KTX 8Y GJ A UMAT UD 7M GVW GF10 MWA LL MPM M?M 4M XY qr qr qr NEeD 10Cy qYY E2 GH l1 Pd 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 Supplementary Submission in Support of Edwards Motion for Reconsideration Page of3 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 __ a I L,4_t:IC JACK/SC,AROLA Flor1da Bar No E-Mail jsx searcylaw.com and earcylaw.com ary E-Mail eservice searcylaw.com Secondary E-Mail _scarolatearn searcylaw.com Searcy 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 Supplementary Submission in Support of Edwards Motion for Reconsideration Page of3 COUNSEL LIST William Chester Brewer Esquire wcblaw aol.com wcbcg aol.com Australian A venue Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein Jack A Goldberger Esquire jgoldberger 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 Lehrman FL North Andrews Avenue Suite Fort Lauderdale FL Phone Fax Fred Haddad Esquire Dee FredHaddadLaw.com Fred FredHaddadLaw.com Fred Haddad P.A One Financial Plaza Suite Fort Lauderdale FL Phone Fax Attorneys for ef:frey 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 efiling tonjahaddad.com Tonja Haddad P.A SE 7th Street Suite Fort Lauderdale FL Phone Fax Attorneys for Jeffrey Epstein IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA MICHAEL STEINBERG Appellant vs MIRIAMF STEINBERG Appellee I FIRST DISTRICT CASE NO INITIAL BRIEF OF APPELLANT On appeal from the Eighth Judicial Circuit in and for Alachua County SIEGAL HUGHES ROSS Newberry Road P.O Box Gainesville FL jross shrlawfirm.com chughes shrlawfirm.com knorman shrlawfirm.com awhitbeck shrlawfirm.com and BURLINGTON ROCKENBACH P.A Courthouse Commons/Suite West Railroad Avenue West Palm Beach FL Attorneys for Appellant pmb FLAppellateLaw.com lab FLAppellateLaw.com kbt FLAppellateLaw.com TABLE OF CONTENTS TABLE OF AUTHORITIES PREFACE STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT POINT-ON-APPEAL THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT AND APPL YING THE LITIGATION PRIVILEGE AS AN ABSOLUTE BAR TO A MALICIOUS PROSECUTION CLAIM CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE STYLE PAGE Ill-VI Vll TABLE OF AUTHORITIES CASES Alamo-Rent-A-Car Inc Mancusi So.2d Fla American Federated Title Corp Greenberg Traurig P.A So.2d Fla 3d DCA Clark Druckman S.E.2d Va Crowell Herring S.C S.E.2d Del Monico Traynor So.3d Fla Echevarria McCalla Raymer Barrett Frappier Cole So.2d Fla Engel CBS Inc F.3d 2d Cir Fisher Payne Fla Fridovich Fridovich So.2d Fla Friedman Dozorc NW 2d Mich Goldstein Serio So.2d La App Graham-Eckes Palm Beach Academy Johnson So.2d Fla 4thDCA PAGE Hogen Valley Hosp Cal.App.3d Cal.Rptr Indus Power Lighting Corp Modular Corp P.2d Alaska Jackson BellSouth Telecommunications F.3d 11th Cir Johnson Sackett So.2d Fla 2d DCA Kalina Fletcher U.S Keys Chrysler Credit Corp Md A.2d LatAm Investments LLC Holland Knight LLP So.3d Fla 3d DCA Levin Middlebrooks Mabie Thomas Mayes Mitchell P.A U.S Fire Ins Co So.2d Fla Loigman Township Committee A.2d N.J Mantia Hanson Or.App P.3d McKinney Okoye Neb N.W.2d Myers Hodges Fla North Star Capital Acquisitions LLC King F.Supp 2d M.D Fla IV Olson Johnson So.2d Fla 2d DCA Procacci Zacco So.2d Fla 4th DCA Rainiers Dairies Raritan Val Farms A.2d Ramsey Home Depot U.S.A Inc So.3d Fla 1st DCA Rushing Bosse So.2d Fla 4th DCA SCI Funeral Services of Florida Inc Henry So.2d Fla 3d DCA Sierra Madre Dev Inc Via Entrada Townhouses Assn P.2d Ariz App Simms Seaman A.3d Conn Finkelstein Thompson Loughran Hemispherx Biopharma Inc A.2d D.C Tatum Bros Real Estate Investment Co Watson Fla The Estate of Mayer Lax Inc NE 2d Ind App Tidwell Witherspoon Fla Fla Willis Linnen Co LP.A Linnen N.E.2d Ohio App Dist Wolfe Foreman So.3d Fla 3d DCA Wright Yurko So.2d Fla 5thDCA STATUTES a Fla Stat Restatement Second Torts OTHER AUTHORITIES Prosser and Keeton on the Law of Torts 5th Ed VI Passim PREFACE This is an appeal from a Final Judgment of the Circuit Court following a non-jury trial The parties are referred to by their proper names as they appeared below or as otherwise designated The following designations will be used Record-on-Appeal Vll STATEMENT OF THE CASE AND FACTS Plaintiff Michael Steinberg hereafter Michael filed a Complaint against his former wife Miriam Steinberg hereafter Miriam initially alleging two counts of malicious prosecution for claims she alleged against him in their dissolution action RI The operative complaint for purposes of this appeal is the Amended Complaint which specifically alleged that Miriam had initiated a civil action against Michael by filing a Counter-Petition in the dissolution action which included as Count I a claim for interspousal tort which was later amended and redesignated a Continuing Domestic Violence Claim RI In the Continuing Domestic Violence Claim Miriam alleged that Michael had a long term history of abusive behavior toward Ms Steinberg and their son when he was a young child and that he had committed various assaults batteries sexual assaults and batteries and had engaged in verbally abusive behavior harassment and other improper conduct In that count Miriam claimed that she had suffered various injuries as a result of Michaels alleged misconduct and that she would need future medical psychological and other treatment in therapy as a result RI Miriam also sought a domestic violence injunction against Michael without notice to him based on those allegations RI In his malicious prosecution claim Count I of his Amended Complaint Michael stated that the factual allegations underlying Miriams Continuing Domestic Violence Claims were false and that she knew them to be false Rl The Amended Complaint alleged that Miriams claim resulted in a bona fide termination in Michaels favor Rl Specifically in the Final Judgment of Dissolution of Marriage the trial court determined that there was insufficient evidence to demonstrate that continuing domestic violence occurred and that the husband shall go hence without day as to Count I of Miriams Counter-Petition Michael also alleged in Count I of the Amended Complaint that Miriam had filed the Continuing Domestic Violence Claim without probable cause since she knew that the facts alleged therein were false Rl Michael also specifically alleged that Miriam acted with malice because she lacked reasonable cause to bring the claim based on her firsthand knowledge of its falsity and that it was done with great indifference to his rights and in an effort to gain an advantage in the dissolution litigation RI Miriam responded to the Amended Complaint with a Motion to Dismiss The trial court entered an order denying that motion Miriam then filed her Answer to the Amended Complaint denying any wrongful conduct and ra1smg numerous affirmative defenses including the litigation privilege Subsequently Miriam filed a Motion for Partial Summary Judgment as to Counts II I and IV of the Amended Complaint arguing inter alia litigation privilege R3 However that motion did not seek a summary judgment as to Count I the malicious prosecution claim and did not allege that the litigation privilege applied to that cause of action After briefing and argument the trial court entered an Order granting Miriams Motion for Partial Summary Judgment as to Counts I II I and IV concluding that the litigation of privilege applied to them That Order cited the then recent decision of the Third District Wolfe Foreman So.3d Fla 3d DCA which held that the litigation privilege barred an action for malicious prosecution However since Miriam had not moved for summary judgment on Count I the order did not address or dispose of that count Thereafter Miriam filed a Motion for Final Summary Judgment as to the malicious prosecution claim relying on Wolfe supra and arguing for the first time that litigation privilege was an absolute bar to a malicious prosecution case She later filed a Notice of Supplemental Authority in support of that motion attaching the mandate in Wolfe and citing a subsequent Third DCA decision which applied Wolfe American Federated Title Corp Greenberg Traurig,P.A Fla Michael filed a Motion for Leave to file a Response to Miriams Notice of Supplemental Authority with a Response noting cases from other district courts in Florida that conflict with Wolfe Michael argued that there is no absolute immunity based on litigation privilege as to the tort of malicious prosecution R9 A hearing was held on Miriams Motion for Summary Judgment as to Count I and later the court entered an order granting that motion A Final Judgment was subsequently entered and Michael has filed this appeal seeking review ofit SUMMARY OF ARGUMENT The trial court erred in applying the Third Districts opinion in Wolfe to justify summary judgment against the Plaintiff in this malicious prosecution action There is ample authority in Florida that litigation privilege is not an absolute bar to a malicious prosecution claim and the Wolfe decision is berrational This Court has not specifically addressed this issue but should follow the lead of all the other district courts in Florida other than the Third District and hold that the litigation privilege does not bar a claim for malicious prosecution That holding would be consistent with the common law prior decisions of the Florida Supreme Court and the overwhelming weight of authority throughout the country Therefore for the reasons stated above this Court should reverse the Summary Judgment entered by the Circuit Court and remand the case for further proceedings ARGUMENT POINT-ON-APPEAL THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT AND APPLYING THE LITIGATION PRIVILEGE AS AN ABSOLUTE BAR TO A MALICIOUS PROSECUTION CLAIM Standard of Review Orders granting summary judgment are reviewed under the de novo standard of review Ramsey Home Depot U.S.A Inc So.3d Fla 1st DCA Additionally where the material facts are not disputed the determination whether a privilege arises is a question of law which is reviewed de novo Del Monico Traynor So.3d Fla Argument The trial court erred in granting Summary Judgment in favor of Miriam based on application of the litigation privilege The trial court relied primarily on the Third Districts decision in Wolfe Foreman So.3d Fla 3d DCA which held that litigation privilege barred malicious prosecution claims However Wolfe conflicts with decisions from other district courts in Florida as well as overwhelming authority from other jurisdictions and is inconsistent with the development of the litigation privilege and malicious prosecution in the common law It does not appear any other jurisdiction in the United States applies an absolute litigation privilege to malicious prosecution claims in fact that cause of action has coexisted in the common law for hundreds of years without conflict As of the filing of this brief this Court has not directly addressed this particular issue However consideration of the overwhelming weight of authority and the pertinent policy considerations should persuade this Court that the Wolfe decision was wrongly decided and that the litigation privilege as developed by the Florida Supreme Court does not justify the result in this case Therefore this Court should reverse the Summary Judgment The Litigation Privilege in Florida The Florida Supreme Court first addressed the scope and application of the litigation privilege in Myers Hodges Fla In that case Hodges had filed suit against a corporation in which Myers was the president Hodges Bill of Equity contained statements relating to Myers personally including that he was a tricky dishonorable unscrupulous and conscienceless man and that he had stated he would do everything in his power to beat Hodges out of the money owing to him short of swearing to a lie So at While that language was stricken from the Bill of Equity by the trial court Myers sued Hodges after the conclusion of that suit for libel based on those slanderous statements The trial court ultimately directed a verdict for Hodges on the libel claim and the Florida Supreme Court affirmed based on what is now termed the litigation privilege In Myers the Supreme Court first addressed the common law in England on this issue but rejected its rule of absolute privilege as to any statements made in judicial proceedings Instead the Court adopted the rule developed in the American common law that an absolute privilege would only apply to statements which were made in judicial proceedings relevant to the subject matter of the actions The Court stated So at We think the ends of justice will be effectually accomplished by not extending the privilege so far as to make it an absolute exemption from liability for defamatory words wholly and entirely outside of and having no connection with the matter of inquiry The Court in Myers did note however that much latitude should be granted in determining whether statements are pertinent to the proceedings and that if the statements were not pertinent a qualified privilege arose that could only be overcome by showing that the defendant made the challenged statements with express malice The Myers decision did not use the term litigation privilege That phrase appeared in the certified question from the Eleventh Circuit Court of Appeals in Levin Middlebrooks Mabie Thomas Mayes and Mitchell P.A United State Fire Ins Co So.2d Fla Some jurisdictions use different terminology such as judicial privilege or just refer to it generally as an absolute privilege e.s Goldstein Serio So.2d La App Appellant will refer to it as the litigation privilege throughout this brief The policy consideration noted by the Myers decision included that it was in the interest of the public that great freedom should be allowed in complaints and allegations in court proceedings So at The Comi also noted that trial courts could protect parties by expunging irrelevant defamatory allegations and utilize its contempt power against the guilty party Id The Myers decision remains the seminal case on the litigation privilege in Florida It demonstrates that the litigation privilege arises from the common law and that it is justified only by the policy considerations which underly it The first significant clarification of the litigation privilege after Myers occurred in Fridovich Fridovich So.2d Fla In that case the Court held that defamatory statements voluntarily made by a private individual to police or prosecuting authorities prior to the institution of criminal charges were not absolutely privileged but only entitled to a qualified privilege which could be overcome by a showing that the statements were made with express malice Subsequently in Levin Middlebrooks Mabie Thomas Mayes and Mitchell P.A United State Fire Ins Co So.2d Fla the Court held that absolute immunity would be afforded to an act involving tortious interference with the business relationship that occurred during the course of judicial proceeding so long as the act had some relevance to that proceeding In that case the Levin firm represented a client in litigation against an insurance company The insurance company subpoenaed one of that fmns attorneys to be a witness at trial resulting in the disqualification of that firm as counsel for the plaintiff However the insurance company did not call that attorney as a witness at the trial After the case was concluded adverse to the insurance company the law firm sued the insurance company for intentional interference with a business relationship for issuing the subpoena and obtaining disqualification of the law firm The Court in Levin held In balancing policy considerations we find that absolute immunity must be afforded to any act occurring during the court of a judicial proceeding regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue so long as the act has some relation to the proceeding The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the court of a judicial proceeding Just as participants in litigation must be free to engage in unhindered communication so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct In Echevarria McCalla Raymer Barrett Frappier Cole So.2d Fla the lower court held that the litigation privilege being a creature of the common law did not apply in cases where the cause of action was created by statute The Florida Supreme Court quashed that decision ruling that the litigation privilege applies in judicial proceedings whether the underlying case involved a common law tort or a statutory cause of action The Court held that the nature of the underlying dispute simply does not matter since the policy considerations justifying the privilege still applies which is the perceived necessity for candid and unrestrained communications in judicial proceedings So.2d at Recently in Delmonico Trayner So.3d Fla the Court held that the litigation privilege did not grant absolute immunity for an attorneys conduct in making defamatory ex parte out of court statements to potential nonparty witnesses even though that conduct arose from his representation of his client in litigation In discussing the litigation privilege the Court in Delmonico stated This Courts recognition of the privilege derived from a balancing of two competing interests the public interest in allowing litigants and counsel to freely and zealously advocate for their causes in court versus protecting the rights of individuals including the right of an individual to maintain his or her reputation and not be subjected to slander or malicious conduct The Court in Delmonico concluded that since judicial oversight and other protections applicable in judicial proceedings were unavailable or far less effective for conduct occurring during an out of court informal investigation that conduct was only entitled to a qualified privilege That qualified privilege would apply if the statements at issue were relevant to the subject matter of the lawsuit however it could be overcome if the plaintiff proved that they were made with express malice So.3d at Malicious Prosecution Claims in Florida While initially acknowledged in Tidwell Witherspoon Fla Fla the tort of malicious prosecution was first discussed in-depth by the Florida Supreme Court in Tatum Bros Real Estate Investment Co Watson So Fla There the Court described malicious prosecution as a very ancient action and defined its elements as follows So at An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements The commencement or continuance of an original criminal or civil judicial proceeding Its legal causation by the present defendant against plaintiff who was defendant in the original proceedings Its bona fide termination in favor of the present plaintiff The absence of probable cause for such proceeding The presence of malice therein Damage conforming to legal standards resulting to plaintiff If any one of these elements is lacking the result is fatal to the action Those elements are still the requirements for a prima facie malicious prosecution action See Alamo-Rent-A-Car Inc Mancusi So.2d Fla As stated in Tatum Bros supra malicious prosecution was an action ex delicto at the common law So at Its genesis was English common law which despite providing for the losing party to pay fees and costs to the prevailing party nonetheless recognized a need for a remedy when special damages beyond those expenses had been suffered by the prevailing party see Engel CBS Inc F.3d 2d Cir and cases cited therein Based on the English common law malicious prosecution was subsequently recognized as a cause of action in American courts Tatum Bros supra with the relevant policy considerations described by Prosser as follows The law supports the use of litigation as a social means for resolving disputes and it encourages honest citizens to bring criminals to justice Consequently the accuser must be given a large degree of freedom to make mistakes and misjudgments without being subjected to liability On the other hand no one should be permitted to subject a fellow citizen to prosecution for an improper purpose and without an honest belief that the accused may be found guilty Prosser and Keeton on the Law of Torts 5th Ed The competing policy consideration underlying malicious prosecution claims were addressed in the elements of the prima facie case The individuals interest in freedom from unjustifiable litigation and the social interest in not chilling access to the courts were balanced by the onerous requirement that the plaintiff prove an absence of probable cause and express malice Id As noted by Justice Scalia in Kalina Fletcher U.S Scalia concurring There was a kind of qualified immunity built into the elements of For a brief summary of the developments in English law from the successful claimants obligation to pay costs and fees to recognition of the malicious prosecution action dating back to the Norman conquest see Friedman Dozorc NW 2d Mich Just a thought the tort Justice Scalia addressed that balance in the context of the Kalina case as follows At common law therefore Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution The tortious act in such a case would have been her decision to bring criminal charges against Fletcher and liability would attach only if Fletcher could prove that the prosecution was malicious without probable cause and ultimately unsuccessful Kalinas false statements as a witness in support of the warrant application would not have been an independent actionable tort although they might have been evidence of malice or initiation in the malicious prosecution suit because of the absolute privilege protecting such testimony from suits for defamation The Litigation Privilege is Not Applied to Malicious Prosecution Claims in Florida Prior to Wolfe In Fisher Payne Fla the Florida Supreme Court addressed a case in which the litigation privilege was asserted in the context of a malicious prosecution action There Fisher and her husband filed an action for libel false imprisonment and malicious prosecution against three defendants arising out of the institution of a lunacy inquisition against her The three def end ants were the three members of the examining committee appointed by the court to assess Fisher and they concluded that she was insane The trial court then adjudged Fisher to be insane and had her transported to a state hospital for maintenance and restraint Approximately a year later the circuit court rendered a decree restoring Fisher to judicial sanity After she was restored to sanity Fisher and her husband filed suit against the three members of the examining committee The trial court entered judgment for the defendants on all three counts and the plaintiffs appealed In Fisher the Florida Supreme Court first addressed the plaintiffs libel claim and in short order determined that it was banned by the litigation privilege adopted in Myers supra However the Court in Fisher did not apply that privilege to the malicious prosecution claim but rather evaluated the common law pleadings and determined them insufficient to demonstrate a prima facie case Specifically the Court found the declaration did not allege that any of the defendants had instituted the lunacy proceedings against Fisher The plaintiffs pleading acknowledged that the defendants were appointed to the examining committee by the court after the action had been initiated and there was no allegation that the defendants had anything to do with the initiation of the action As a result that required element of the tort had not been alleged Id So at In Fisher the Court also noted that the plaintiffs had failed to allege the essential element that the lunacy proceedings were commenced without probable cause Id If the Court in Fisher believed that the litigation privilege established in Myers applied as a bar to the malicious prosecution claim there would have been The Court in Fisher also disposed of the false imprisonment claim on the ground that it was not adequately plead So at no need to address whether or not plaintiffs allegations sufficiently stated the elements of that tort Obviously consistent with English common law the Florida Supreme Court recognized that the litigation privilege and the cause of action for malicious prosecution should coexist without conflict Subsequent to Fisher and prior to Wolfe there were numerous district court decisions in Florida addressing whether the litigation privilege barred a claim for malicious prosecution In Wright Yurko So.2d Fla 5th DCA the Fifth District consolidated two actions in which a doctor sued people who had initiated or participated in an unsuccessful medical malpractice action against him In one suit he sued Yurko the attorney that represented the plaintiffs in the medical malpractice action and in a second suit he sued the plaintiffs Dormans and Barnett Green the expert witness who testified for them Wright alleged claims for perjury libel slander defamation and malicious prosecution The trial court had dismissed the complaint against the Dormans and Green and granted summary judgment in favor of Yurko Wright appealed both rulings and they were consolidated on appeal In Wright the Fifth District first addressed the dismissal of the claims against the Dormans and Green The court affirmed the dismissal of the claims for perjury libel slander defamation and conspiracy to commit those torts based on the litigation privilege So.2d at The court then stated So.2d at The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution Footnote deleted The Fifth District proceeded to analyze Wrights complaint and determined that it sufficiently alleged the elements of malicious prosecution claims and concluded that the dismissal order should be reversed Thus while the Fifth District in Wright concluded that the litigation privilege barred every other claim in Wrights complaint against the Dormans and Green it did not bar the malicious prosecution claim In Graham-Eckes Palm Beach Academy Johnson So.2d Fla 4th DCA the court affirmed a final judgment denying relief on claims for intentional inference with a contract for sale of land and slander of title The court stated So.2d at Appellant contends that the absolute 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 would have been one As to Wrights suit against Yurko the Fifth District upheld the summary judgment against Wright on the basis that Yurko had filed an affidavit demonstrating probable cause for the filing of the suit and the doctor had not filed any counter affidavits or other sworn testimony in opposition thereto So.2d at for malicious prosecution and affirm on the authority of Procacci Zacco So.2d Fla 4th DCA Thus the Fourth District ruled that the litigation privilege applied to the slander of title and interference with a contract claims but that the privilege would not have barred a malicious prosecution claim In Olson Johnson So.2d Fla 2d DCA the Second District also concluded that a malicious prosecution action was not barred by the litigation privilege In that case Johnson was in a custody battle with a man named Olson and she and two of her friends signed affidavits alleging that he was stalking her Those affidavits provided the basis for a criminal charge to be brought against Olson However Olson was acquitted and then sued the three women for malicious prosecution The trial court granted summary judgment to Johnson and the Second District reversed concluding inter alia that Olsons claim was not barred by the litigation privilege The Second District in an opinion authorized by then-Judge Canady stated Johnsons reliance on Fridovich is unwarranted In relying on Fridovich Johnson confuses the law of defamation-with which Fridovich deals-with the law of malicious prosecution-which is at issue in the instant case Olson has made no claim based on defamation and the fact that defamatory statements may have been made in the course of the conduct which Olson alleges as the basis for his claim does not transform that claim into a defamation claim that is subject to an assertion of the absolute privilege or qualified privilege discussed in Fridovich There is no equivalent privilege available to a complaining witness such as Johnson who is named as a defendant in a malicious prosecution action Such a defendant must defend against a malicious prosecution claim by disputing an element or elements of the cause of action alleged or by raising an applicable affirmative defense That rationale was consistent with prior Florida law and essentially tracks Justice Scalias analysis of the common law in Kalina quoted supra Thus prior to Wolfe the Fifth Fourth and Second Districts had ruled that the litigation privilege did not apply to malicious prosecution claims There are other references in Florida district court decisions which demonstrate that prior to Wolfe the litigation privilege was not considered to be an absolute bar to a malicious prosecution action For example in Rushing Bosse So.2d Fla 4th DCA the court noted that the complaint stated inter alia a cause of action for malicious prosecution on behalf of a child who was subject to an adoption proceeding The trial court had dismissed that count as to two attorneys who had been named as defendants The Fourth District in an opinion written by then-Judge Pariente reversed that ruling stating So.2d at The fact that Chilton and Bosse are attorneys does not immunize them from a malicious prosecution action if the evidence establishes that they instituted a claim which a reasonable lawyer would not regard as tenable or umeasonably neglected to investigate the facts and law in making a determination to proceed provided that as long as the other elements of a malicious prosecution are also proven Additionally in SCI Funeral Services of Florida Inc Henry So.2d Fla 3d DCA the Third District stated albeit in dicta As the Levin court cited Wright Yurko So.2d Fla 5th DCA with approval presumably the cause of action for malicious prosecution continues to exist and would not be barred by the litigation privilege See Wright So.2d at See also Johnson Sackett So.2d Fla 2d DCA HRS case worker was not entitled to absolute immunity under the common law from malicious prosecution action although she was entitled to the qualified privilege in a Fla Stat Finally in North Star Capital Acquisitions LLC King F.Supp 2d M.D Fla the federal district court addressed whether the litigation privilege protected arguably misleading or deceptive documents which had been served on defendants with the complaint at the initiation of the lawsuit The district judge ultimately concluded that the Florida Supreme Court would not extend the litigation privilege to that conduct and in his discussions stated Supp 2d at The privilege applies to conduct that occurs during settlement negotiation See Jackson BellSouth Telecommunications F.3d 11th Cir However not every event bearing any relation to litigation is protected by the privilege because as noted by counterclaim plaintiffs if the litigation privilege applied to all actions preliminary to or during judicial proceedings an abuse of process claim would never exist nor would a claim for malicious prosecution See SCI Funeral Services of Fla Inc Herny So.2d Fla 3rd DCA noting that the Florida Supreme Court has implied that malicious prosecution claims have survived the expansion of the litigation privilege Footnote deleted Prior to Wolfe there was no case law in Florida holding that the litigation privilege barred a malicious prosecution claim Other Jurisdictions The pre-Wolfe Florida case law discussed above uniformly held that the litigation privilege did not bar an action for malicious prosecution That case law was consistent with the overwhelming weight of authority throughout the country As recently noted by the court in The Estate of Mayer Lax Inc NE 2d Ind App A vast number of other jurisdictions also hold that even where an absolute litigation privilege bars an action for defamation based on statements made during a judicial proceeding it does not bar an action for malicious prosecution See Hogen Valley Hosp Cal.App.3d Cal.Rptr Goldstein Serio So.2d La.Ct.App.1986 writ denied Keys Chrysler Credit Corp Md A.2d McKinney Okoye Neb N.W.2d Rainiers Dairies Raritan Val Farms N.J A.2d Mantia Hanson Or.App P.3d Crowell Herring S.C S.E.2d 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 Those are not the only jurisdictions which hold that the litigation privilege does not bar a malicious prosecution claim See Indus Power Lighting Corp Modular Corp P.2d Alaska Sierra Madre Dev Inc Via Entrada Townhouses Assn P.2d Ariz App Simms Seaman A.3d Conn Finkelstein Thompson Loughran Hemispherx Biopharma Inc A.2d D.C Loigman Township Committee A.2d N.J Willis Linnen Co L.P.A Linnen N.E.2d Ohio App Dist and Clark Druckman S.E.2d Va The general acceptance of that holding is further demonstrated by the codification of the litigation privilege in Restatement Second Torts which describes the privilege consistent with Florida law as follows 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 part of a judicial proceeding in which he participates if the matter has some relation to the proceeding However in Comment a 2d the Restatement 2d Torts specifically notes that the privilege does not eliminate a claim from malicious prosecution The privilege stated in this Section is based upon the public interest in according to all men the utmost freedom of access to the courts of justice for the settlement of their private disputes Like the privilege of an attorney it is absolute It protects a party to a private litigation or a private prosecutor in a criminal prosecution from liability for defamation irrespective of his purpose in publishing the defamatory matter of his belief in its truth or even his knowledge of its falsity 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 The Wolfe Decision Despite the lengthy history of the coexistence of the litigation privilege and the cause of action for malicious prosecution and the extensive case law cited above the Third District in Wolfe held that the absolute immunity afforded by the litigation privilege barred an action for malicious prosecution In Wolfe a malicious prosecution claim was brought against Florida attorneys who had been retained by their clients New York counsel to file a The plaintiffs in Wolfe also sued the defendants for abuse of process and the Third District held that the litigation privilege barred that claim based on its earlier complaint in federal court in Miami The complaint between the same parties addressed a dispute that had been the subject of prior litigation and a settlement agreement However neither the client nor his New York counsel fully informed the Miami lawyers of that prior litigation and the settlement agreement After filing the complaint and being provided with those materials the Miami lawyers immediately notified the client that they could not ethically pursue his claims and they withdrew with court authorization Thereafter the complaint was dismissed and a final judgment in favor of the defendants was entered After the conclusion of the federal litigation the plaintiffs in Wolfe filed a malicious prosecution action against the Miami lawyers The trial court granted a judgment on the pleadings concluding that the litigation privilege granted them absolute immunity and the Third District affirmed that determination In Wolfe the Third District relied on its prior decision LatAm Investments supra and other authority to hold that the litigation privilege applied to the abuse of process claim With respect to the malicious prosecution claim the decision in LatAm Investments LLC Holland Knight LLP So.3d Fla 3d DCA Abuse of process is not a claim in the case sub judice It should be noted that in Estate of Mayer supra after noting the vast number of cases rejecting the application of the litigation privilege to malicious prosecution claims stated N.E.2d at The case law regarding absolute privilege and abuse of process claims is not as overwhelmingly uniform Third District acknowledged that the law is not as clear whether the privilege barred that claim Wolfe So.3d at In its legal analysis the Third District noted the establishment of the litigation privilege in Myers supra and quoted language from Levin supra and Echevarria supra that absolute immunity must be afford to any act occurring during the course of a judicial proceeding So.3d at The Third District concluded that the filing of a complaint was clearly an act that would fall within the parameters of that language and therefore it must be subject to the litigation privilege The opinion also notes that while tortious conduct such as malicious prosecution may be protected under the litigation privilege there was still a remedy available in the discipline of the courts the bar association and the state So.3d at quoting Levin supra So.2d at In Wolfe Judge Sheperd filed a specifically concurring opinion in which he joined in the affirmance but for different reasons Judge Sheperd concluded that the malicious prosecution claim was fatally defective because two essential elements were missing-malice and absence of probable cause So.3d at It is important to note what the majority opinion in Wolfe did not address The majority did not analyze or even mention the fact that the litigation privilege and malicious prosecution claims had coexisted in the common law for hundreds of years without any conflict Additionally the majority did not address any of the Florida case law discussed supra in which the litigation privilege was not applied to malicious prosecution claims In fact the majority in Wolfe did not even discuss the dicta in its prior decision in SCI Funeral supra to the effect that the Supreme Courts citation with approval to Wright supra in the Levin decision indicated that a malicious prosecution claim would not be barred by the litigation privilege So.2d at The only Florida case discussed above that the majority addressed in Wolfe was the Second Districts decision in Olson supra The majority opinion in Wolfe relied upon that case for the proposition that application of the litigation privilege would not eliminate the malicious prosecution cause of action The majority stated that the tort would still apply to acts committed prior to the filing of the complaint if they qualified as a legal cause of the initiation of the underlying proceedings Putting aside that extreme limitation on malicious prosecution claims that analysis ignores that Olson rejected the claim of absolute privilege on the basis that it confused the law of defamation with the law of malicious prosecution So.2d at Thus Olson is not support for the majority decision in Wolfe Finally it is also significant that the majority in Wolfe did not discuss the law of any other jurisdiction nor cite any recognized treatise for the proposition that the litigation privilege applied to malicious prosecution claims There does not appear to be any such authority and it is respectfully submitted that is strong support for the conclusion that Wolfe was erroneously decided and should not be followed by this Court This Court Should Not Follow Wolfe This Court has not directly addressed the issue involved in this case whether the litigation privilege is an absolute bar to an action for malicious prosecution This Court should follow the overwhelming weight of authority in Florida and throughout the country which have upheld the ancient cause of action for malicious prosecution in this context An analysis of the Wolfe opinion demonstrates its weaknesses There the majority opinion did not address the common law history of the litigation privilege and the cause of action for malicious prosecution The majority of Wolfe did not cite any authority on point from any jurisdiction that supported its holding Moreover while the policy considerations underlying the litigation privilege and the malicious prosecution cause of action are related the balance struck by the courts through the common law has been carefully evaluated and established Wolfe does not explain why these policy considerations have now changed so drastically as to justify the elimination of the cause of action for the malicious prosecution While the majority in Wolfe suggests that the tort of malicious prosecution would still exist under its rationale it limited it to those rare circumstances where a party or parties who motivated but did not actually file the vexatious action might be held liable However under Wolfes reasoning the person or entity who actually filed the vexatious action would have absolute immunity because the filing of the complaint was an act done in a judicial proceeding There is no policy justification for that distinction and while the Wolfe majority relies on Olson supra that was not the rationale of the Second Districts decision The Wolfe majority opinion is based almost entirely on one clause from the Levin decision which was subsequently quoted in Echevarria to the effect that any act occurring during a judicial proceeding is absolutely privileged However neither Levin nor Echevarria addressed a malicious prosecution claim in which the initiation of the vexatious litigation is the wrong itself Neither Levin nor Echevarria involved a situation where the underlying litigation was maliciously initiated and neither opinion provides a basis to conclude that the Florida Supreme Court would choose to deviate from the overwhelming weight of authority in this country on this issue The Florida Supreme Court has recognized the common law origins of both the litigation privilege and the malicious prosecution cause of action legal principles which have coexisted without conflict for hundreds of years In fact the Supreme Court applied them without conflict in Fisher Payne supra While the Supreme Court has obviously accepted the argument that potentially tortious conduct in litigation which presumably was not filed maliciously is entitled to absolute immunity that is not the same as the conclusion that the malicious initiation of litigation should also be immune As noted in an early edition of Prossers treatise There is no policy in favor of vexatious suits known to be groundless which are a real and often a serious injury and the heavy burden of proof upon the plaintiff to establish both lack of probable cause and an improper purpose should afford sufficient protection to the bona fide litigant and adequate safeguard against a series of actions Prosser Torts quoted in Rainiers Dairies Raritan Valley Farms A.2d N.J In Wolfe which was a case brought against attorneys the majority also relied on the fact that there were other remedies available to the plaintiffs including the discipline of the courts the bar association and the state quoting Levin supra So.2d at However those remedies provide no benefit to Michael under the circumstances of this case Here Michaels ex-wife accused him of the most heinous acts against her and his child This included assault and battery sexual assault and battery and a history of violence and intimidation Despite the fact that he prevailed against those claims the presiding court had no ability to restore his reputation or compensate him for his loss or the damage done to him as a businessman in the community Indeed these facts are the quintessential example of why the cause of action of malicious prosecution was originally established in the common law in the first place The English courts recognized despite their rule that the losing party pays the fees and costs of the prevailing party that was insufficient to remedy the harm resulting from vexatious litigation when the damage occurred to ones reputation property or business It is noteworthy that English courts which recognize a broader litigation privilege than American courts an absolute immunity for anything said in litigation regardless of relevance to the subject matter still reject the application of that privilege to a malicious prosecution claim In this country where there is no obligation for the losing party to pay the fees and costs to the prevailing party at least in a dissolution action such as the case sub judice and the litigation privileges more narrowly construed it makes no sense to hold that that privilege eliminates the cause of action for malicious prosecution CONCLUSION For the reasons stated above the Final Judgment of the Circuit Court should be reversed and the cause remanded for further proceedings CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list by email on May Jack Ross Esq Charles Hughes Esq SIEGAL HUGHES ROSS Newberry Road P.O Box Gainesville FL jross shrlawfirm.com chughes shrlawfirm.com knorman shrlawfirm.com awhitbeck shrlawfirm.com and BURLINGTON ROCKENBACH P.A Courthouse Commons/Suite West Railroad A venue West Palm Beach FL Attorneys for Appellant pmb FLAppellateLaw.com lab FLAppellateLaw.com kbt FLAppellateLaw.com By Isl Philip Burlington PHILIP BURLINGTON Florida Bar No CERTIFICATE OF TYPE SIZE STYLE Appellant hereby certifies that the type size and style of the Initial Brief of Appellant is Times New Roman pt Philip Burlington PHILIP BURLINGTON Florida Bar No SERVICE LIST Steinberg Steinberg Case No Kevin Cook Esq Michael Lockamy Esq BEDELL DITTMAR DEV AULT PILLANS COXE P.A East Adams St Jacksonville FL kbc bedellfirm.com syt bedellfirm.com mel bedellfirm.com jbam bedellfirm.com Attorneys for Appellee Robert Griscti Esq DEAN MEAD BOV AY N.W 57th St Gainesville FL rgriscti deanmead.com ewelker deanmead.com Attorneys for Appellee
