Filing E-Filed PM JEFFREY EPSTEIN Plaintiff/Counter-Defendant vs SCOTT ROTHSTEIN individually and BRADLEY EDWARDS individually Defendants/Counter-Plaintiffs IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO I DEFENDANT/COUNTER-PLAINTIFF BRADLEY EDWARDS MOTION TO STRIKE PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEINS MOTION FOR SUMMARY JUDGMENT ON THE FOURTH AMENDED COUNTERCLAIM AND SUPPORTING MEMORANDUM OF LAW Defendant/Counter-Plaintiff Bradley Edwards individually by and through his undersigned counsel hereby files this Motion to Strike Plaintiff/Counter-Defendant Jeffrey Epsteins Motion for Summary Judgment on the Fourth Amended Counterclaim and Supporting Memorandum of Law based on the law of the case doctrine RELEVANT PROCEDURAL BACKGROUND In the Fourth Amended Counterclaim Edwards raised two claims against Epstein abuse of process and malicious prosecution As to the malicious prosecution claim Edwards alleged that the filing of the original complaint by Epstein constituted malicious prosecution because Epstein filed it for the sole purpose of further attempting to intimidate Edwards and others into abandoning or settling their legitimate claims for less than their just and reasonable value FILED PALM BEACH COUNTY FL SHARON BOCK CLERK PM After the filing of the Fourth Amended Complaint Epstein moved for summary judgment arguing as to the malicious prosecution claim that summary judgment was required based upon the litigation privilege Alternatively Epstein argued that the claim failed as a matter of law because the undisputed facts established that there was probable cause for his original action against Edwards which barred a claim for malicious prosecution He also claimed that Edwards could never establish a bona fide termination in his favor The absence of probable cause for the prosecution and bona fide termination in the plaintiffs favor are two of six elements of a claim for malicious prosecution See Rivernider Meyer So.3d Fla 4th DCA noting the six elements to a malicious prosecution claim the commencement of a judicial proceeding its legal causation by the present defendant against the plaintiff its bona fide termination in favor of the plaintiff the absence of probable cause for the prosecution malice and damages Edwards responded to the Motion fully addressing both the litigation privilege argument and the probable cause and bona fide termination arguments At the hearing on the Motion for Summary Judgment this Court explained that it would not grant the motion because of at least those two reasons that is that I believe that there are questions of fact related to the probable cause issue as well as the bona fide determination issue additionally hearing transcript A copy of the transcript is attached as Exhibit A Thus the Court determined based upon the evidence submitted and the argument that the probable cause issue was one for the jury However this Court granted summary judgment favor of Epstein based on the litigation privilege relying on Wolfe Foreman So.3d Fla 3d DCA Accordingly Final Judgment was entered in favor of Epstein Edwards appealed the summary judgment addressing in his Initial Brief only the litigation privilege issue as that was the basis upon which this Court ruled against Edwards In his Answer Brief Epstein argued In addition Appellee argued in his Summary Judgment motion that Appellant could not satisfy all of the elements of a Malicious Prosecution claim including that the suit by Appellee against Appellant resulted in a bona-fide termination in favor of Appellant Appellee took a voluntary dismissal without prejudice which does not constitute a bona-fide termination one of the six essential elements of a malicious prosecution claim See Valdes GAB Robins So.2d Fla 3d DCA Appellant neither addresses nor submits argument as to Appellees assertion so this is not addressed in this Answer Brief Rather Appellee reasserts all argument as delineated in his original Motion for Summary Judgment and relies thereupon AB nl emphasis added A copy of Epsteins Answer Brief is attached as Exhibit While the appeal was pending at the Fourth District that court issued an opinion in Fischer Debrincat So.3d Fla 4th DCA approved So.3d Fla In Fischer the court held that the litigation privilege could not be applied to bar a claim for malicious prosecution or abuse of process The court certified conflict with Wolfe the Florida Supreme Court ultimately approved Fischer and disapproved the Third Districts decision in Wolfe In its Opinion in this case the Fourth District held that its decision in Fischer controlled as to the litigation privilege issue Edwards Epstein So.3d Fla 4th DCA rev denied No WL Fla June However the court did not stop there The court also addressed the probable cause issue As to that issue the court held Epstein suggests that this case could be decided on a tipsy coachman analysis as he alleges that all the elements of the cause of action were not present However the trial court specifically found that material issues of fact remained as to the elements of the claim Based upon the facts presented and the inferences which may be drawn from those facts we will not disturb the trial courts evaluation Id emphasis added Thus the Fourth District considered Epsteins probable cause argument and expressly affirmed this Courts decision that summary judgment was not appropriate on that issue ARGUMENT This Courts decision that there was a genuine issue of material fact as to the probable cause issue was considered and approved by the Fourth District Court of Appeal further consideration of the issue is barred by the law of the case doctrine The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court through all subsequent stages of the proceedings Florida Dept of Transp Juliano So.2d Fla citing Greene Massey So.2d Fla All points of law which have been adjudicated become the law of the case and are except in exceptional circumstances no longer open for discussion or consideration in subsequent proceedings in the case Strazzulla Hendrick So.2d Fla Under the law of the case doctrine a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case Id at Epstein asks this Court to grant summary judgment in his favor on the basis that there is no genuine issue of material fact that he had probable cause to bring his original action against Edwards However Epstein made this same argument to the Fourth District in his Answer Brief The Fourth District rejected it and approved this Courts ruling on that issue and the facts on which this decision was based continue to be the facts of the case Juliano So.2d at Therefore the law of the case doctrine binds this Court to follow the Fourth Districts holding and therefore this Courts prior determination on this issue The Fourth District Court of Appeal has already affirmed this Courts decision that there is a genuine issue of material fact as to probable cause thus consideration of this issue by this Court again is precluded by the law of the case doctrine Gabor Gabor Co Inc So.2d Fla 3d DCA is directly on point In Gabor the appellate court held that there was a genuine issue of material fact as to the claim in question and reversed the trial courts entry of summary judgment On remand the trial court considered the same issue again in a successive motion for summary judgment and entered summary judgment as to the claim in question On appeal of the second summary judgment the appellate court again reversed based upon the law of the case doctrine The court explained In the case sub Judice this court had determined in the previous appeal that a genuine issue of material fact existed as to whether Frank and Ronald Gabor acted in their capacities as directors or officers of the corporations during the events which formed the basis of Sussexs complaint On remand the record reflects that the Gabors did not present any evidence different from or in addition to the evidence previously presented to the trial court on this point Applying the law of the case doctrine therefore it was error for the trial court to enter summary judgment on a point previously determined not amenable to a summary judgment Gabor Gabor Co Inc So.2d Fla 3d DCA see also United Auto Ins Co Comprehensive Health Ctr So.3d Fla 3d DCA entry of summary judgment which was affirmed on appeal precluded trial court readdressing the same issue on remand Wallace Dodge Mem Hosp So.2d Fla 3d DCA holding that the appellate courts determination that there were genuine issues of material fact as to a claim constituted law of the case on remand Therefore for the reasons stated above this Court is obligated to deny Epsteins Motion for Summary Judgment based upon the law of the case doctrine and there is no need to even hear argument on it This Court previously ruled on this precise issue and the Fourth District upheld its determination Wherefore for the reasons stated above Edwards requests that this Court strike Epsteins Motion for Summary Judgment I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list by email on September kbt Jack Scarola Esq SEARCY DENNEY SCAROLA BARNHART SHIPLEY P.A Palm Beach Lakes Blvd West Palm Beach FL eservice searcylaw.com jsx searcylaw.com and BURLINGTON ROCKENBACH P.A Courthouse Commons/Suite West Railroad A venue West Palm Beach FL Attorneys for Bradley Edwards pmb FLAppellateLaw.com kbt FLAppellateLaw.com By:/s Philip Burlington PHILIP BURLINGTON Florida Bar No By:/s Nichole Segal NICHOLE SEGAL Florida Bar No Epstein Rothstein/Edwards Case No Chester Brewer Jr Esq CHESTER BREWER JR P.A Australian Ave Ste West Palm Beach FL wcblaw aol.com wcblawasst gmail.com Attorneys for Jeffrey Epstein Fred Haddad Esq FRED HADDAD P.A Financial Plaza Ste Fort Lauderdale FL haddadfm aol.com fred fredhaddadlaw.com dee fredhaddadlaw.com Attorneys for Jeffrey Epstein Mark Nurik Esq LAW OFFICES OF MARC NURIK Broward Blvd Ste Fort Lauderdale FL marc nuriklaw.com Attorneys for Scott Rothstein SERVICE LIST Jack Goldberger Esq ATTERBURY,GOLDBERGER WEISS P.A Australian Ave Ste West Palm Beach FL jgoldberger agwpa.com smahoney agwpa.com Attorneys for Jeffrey Epstein Tonja Haddad Coleman Esq TONJA HADDAD P.A SE 7th Street Ste Fort Lauderdale FL tonja tonjahaddad.com efiling tonj ahaddad com Attorneys for Jeffrey Epstein Bradley Edwards Esq FARMER JAFFE WEIS SING EDWARDS FISTOS LEHRMAN P.L Andrews Ave Ste Fort Lauderdale FL staff.efile pathtojustice.com brad pathtojustice.com IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO JEFFREY EPSTEIN Plaintiff COFY vs SCOTT ROTHSTEIN individually and BRADLEY EDWARDS individually Defendants I DATE TAKEN TIME PLACE BEFORE TRANSCRIPT OF HEARING PROCEEDINGS Monday January p.m p.m Palm Beach County Courthouse Dixie Highway Courtroom 9C st Palm Beach FL Donald Hafele Circuit Judge This cause came on to be heard at the time and place aforesaid when and where the following proceedings were stenographically reported by Robyn Maxwell RPR FPR CLR Realtime Systems Administrator w.phippsreporting.com I Exhibit A APPEARANCES On behalf of the Plaintiff CHESTER BREWER JR P.A South Australian Avenue Suite West Palm Beach FL BY CHESTER BREWER JR ESQUIRE wcblaw aol.com ATTERBURY GOLDBERGER WEISS PA South_Australian Avenue Suite West Palm Beach FL BY JACK A GOLDBERGER ESQUIRE jgoldberger agwpa 267com TONJA HADDAD PA SE 7th Street Suite Fort Lauderdale FL BY TONJA HADDAD COLEMAN ESQUIRE tonja tonjahaddad.com On behalf of Bradley Edwards SEARCY DENNEY SCAROLA BARNHART SHIPLEY P.A Palm Beach Lakes Boulevard West Palm Beach FL BY JACK SCAROLA ESQUIRE JSX searcylaw.com BY WILLIAM KING ESQUIRE Wbk searcylaw.com w.phippsreporting.com Thereupon the following proceedings began at p.m THE COURT Good afternoon everybody Thank you so much Have a seat Welcome MR BREWER Good afternoon Your Honor THE COURT I had the opportunity to read the binder and the materials sent to me by respective counsel I dont think the case should take two hours MR BREWER No THE COURT So what Im going to ask you to do is kindly tailor your arguments to one-half hour apiece And the rnovant may split up the time to save some moments for rebuttal And I think that should more than adequately deal with the matter I think the United States Supreme Court heard the Brown vs Board Of Education and gave minutes a side So if that can be done in that amount of time I think we can take care of this And of course you all realize and I don think this has anything whatsoever to do with the matter but I should let you know that I handled the state claims that involved Mr Epstein when I was in Division So I have a significant ph_ippsreporting com i amount of familiarity with the claims that were made However until I met with Judge Crow involving this case I had no knowledge whatsoever that a separate and independent action had been brought by Mr Epstein against the Rothstein entities and Mr Edwards So to that extent I just to want let you know as you probably already did already know that I handled those cases I believe to their conclusion at or near the time that I left that division two years ago or so Okay So are you Ms Haddad MS HADDAD I am THE COURT Will you be arguing on behalf Mr Epstein MS HADDAD No Judge I dont have Mr Brewer will be arguing on our behalf because as you can hear I have a cold THE COURT All right Mr Scarola did you want to say something MR SCAROLA I did Your Honor I just wanted to clarify one matter which I believe to be of some significance THE COURT Sure Of course MR SCAROLA And that is Your Honor referenced a claim against the Rothstein entities w.phippsreporting.com and that is not the case THE COURT It was just Rothstein individually MR SCAROLA It was just against Mr Rothstein individually That claim has neyer really been defended and against Mr Edwards And the focus of these motions is only on Mr Edwards claims for abuse of process and malicious prosecution THE COURT The later I knew My apologies for misstating the number of defendants involved MR SCAROLA No apology necessary sir THE COURT The only defendants involved and they may have been voluntarily dismissed without prejudice is that accurate MR SCAROLA There was a voluntary dismissal of the initial claims brought against Mr Edwards thats correct sir on the eve of summary judgment hearing THE COURT I remember that being written in your papers MR SCAROLA Yes sir THE COURT So is Epstein claim against Rothstein still viable at this juncture MS HADDAD Yes Your Honor it is w.phippsreporting.com rffl:t11 THE COURT So the dismissed case without prejudice was to was as to Mr Edwards only MR SCAROLA The claims against LM one of victims of Mr Epsteins conduct those claims are also dismissed THE COURT Okay Thank you for that clarification I much appreciate it Mr Brewer MR BREWER Yes sir Well first of all Your Honor Im Chester Brewer appearing on behalf of Jeffrey Epstein We have before you today a motion for summary judgment filed on behalf Mr Epstein with regard to a counterclaim that was filed by Mr Edwards The case is currently set before Your Honor specially set I might say for a three-week or proposed three-week trial and it is currently set for May the 6th of this year One thing that I did want to talk to the Court about before going into the procedural history is in the package that was provided to you by counsel for Mr Edwards there is a statement or interview that is with a young lady by the name of Virginia Roberts Now I dont know whether you have had an opportunity to read it or not w.phippsreporting.com THE COURT I didnt I saw the reference to Ms Roberts Who is she MR BREWER Ms Roberts was an alleged victim of Mr Epstein There was an interview taken of her by Mr Scarola and I believe Mr Edwards Theres a transcript of that interview which is neither sworn to nor even signed Its something that could not be used for any purpose in the trial of this matter even for impeachment So if Your Honor has not read it I wont go into it THE COURT No I have not read it I just saw the name Virginia Roberts bandied about on several different occasions so thats all I know And as you can tell I didnt know her relationship to the case MR BREWER Okay Your Honor the procedural history here is there were a number of claims brought by alleged victims of Mr Epstein There were a number of different attorneys that were involved And a number of different cases were filed both in federal court and in state court on behalf of these alleged victims The cases proceeded as youve said some of them were before you They have all now per my 267phippsreporting com information they have now all concluded although there may still be some investigations THE COURT Mr Edwards at his latest deposition indicated that theres still the victims case thats going on in the federal court MR BREWER Nothing has happened on that for a quite some period of time now The MR KING Judge if I may in response to your question Im not sure what victims case thats referencing All all of the cas THE COURT This was a federal statutory MR KING I THE COURT that Mr Edwards indicates hes doing pro bono on behalf of two of the alleged victims MR KING Youre correct THE COURT In the Epstein matters MR KING Thats correct Sorry for the interruption THE COURT Thats okay MR BREWER During the course of those cases there was some rather unusual discovery that was taking place And it was learned and I w.phippsreporting.com Ill get into this towards the end of my presentation but there were a number of things that were learned by Mr Epstein in and around November of November/December He filed a lawsuit against Mr Rothstein Mr Edwards and LM who is one of the alleged victims One of the counts in that was for malicious I believe its he only had abuse of process along with some other counts In response to that complaint Mr Scarola on behalf of Mr Edwards filed a counterclaim That counterclaim went through several amendments but the fourth amended counterclaim speaks to two causes of action that is abuse of process and malicious prosecution So those are what were here to talk about today is abuse of process and malicious prosecution as it relates to Mr Epsteins original claim against Mr Edwards In response to Mr Edwards counterclaim there were a number of affirmative defenses raised but one of them that was raised was the litigation privilege And we are here today to talk with you about the litigation privilege and its current state as espoused by the Florida Supreme Court and the Third District Court Of w.phippsreporting.com Appeals and in fact the Fourth District Court Of Appeals TEE COURT One thing I wanted to interrupt you on is this Wolfe case and its current status and the Ill call the Ill call it the Edwards side to make things be easier But the Edwards side has raised the issue that apparently this Wolfe case is still in rehearing and ther fore of no precedential value to the court Mr King did you want to speak briefly to that MR KING Yeah We submitted a notice of correction to Judge Sasser the other day who stood in for you on the page extension THE COURT Right MR KING We gave her that and asked her to turn that over to you is THE COURT I didnt get it MR KING Okay Whats actually happened and its confusing because Westlaw whole history on this and Mr Brewer also understands this because he ran into the same problem My reading of the history that Westlaw contains indicates that the mandate has issued but they still use the caveat this is a Westlaw w.phippsreporting.com citation only its not in the final published format and therefore it can be changed at any time But with the issuance of the mandate that signifies that it is the rehearing is denied and it is now final THE COURT Okay Thank you for that I did not know that until right now MR BREWER So lets get into the Wolfe case Thats where were headed next And really theres a trilogy of cases There the Levin case the Echevarria case if Im somewhere close to pronouncing that correctly and the Wolfe case All of them deal with litigation privilege which dates back to And I think that we are all most familiar with the standard that famation cases if the quote alleged defamation occurred during the co 267urse of a judicial proceeding would be protected by the litigation privilege and no action could be taken on them Over the years different courts looked at it There was an attempt there were attempts made to determine how far and to which causes of action the litigation privilege would apply The seminal case now for us I guess now is Levin This was Levin Mabie suing It was w.phippsreporting.com actually a tortious interference case But the case went up to the Florida Supreme Court And the issue before them was how far is this privilege or to what causes of action should this privilege apply And the Levin court came out and said that it would apply to all torts including the one that was before them which was tortious interference And that the standard for determining whether the action complained of would be whether that action had some relation to the proceeding the judicial preceding Later on the question came up Well should that its the weve already determined that it applies to all torts And so does it also apply to statutory violations or cases involving statutory violations And thats the Echevarria case also in front of the Florida Supreme Court some or years after Levin and they found yes that it does apply to essentially all civil judicial proceedings Now the issues before us are the litigation privilege as it applies to abuse of process and malicious prosecution That was all brought to a head in the Wolfe case In the Wolfe w.phippsreporting.com case the Third District Court Of Appeal was faced with the issue of do the does the litigation privilege apply in those two causes of action The answer was yes The Wolfe case or the Wolfe court went back and essentially referred back to and analyzed the Levin and Echevarria cases And thats why I say its kind of a trilogy And in the Wolfe case it was determined that this was not not only was it privileged for any actions that were related to the judicial process it was an absolute privilege Now in our case we have exactly the same issue Weve got a complaint that was filed that is alleged in the counterclaim to be malicious prosecution We also have the pleadings everything that was filed after the initiation of the judicial pleading judicial process Its claimed to be an abuse of process In fact in answers to interrogatories and all of the discovery that has been had from the Edwards side they have said that the filing of the complaint was in itself it was untrue the information that was there was untrue Epstein should have known it was untrue and that he had a w.phippsreporting.com bad purpose in filing which was to intimidate or extort Mr Edwards and his client Thats been put to bed in the Wolfe case because the litigation privilege absolutely applies and is absolute The Wolfe case states that they could think or the Wolfe court stated they could think of no action that would be more related to the judicial process than the filing of a complaint So a complaint the filing of the complaint is privileged Then going back and then as they related to the Levin case and the Echevarria case they said anything that was related to the judicial process discovery depositions interrogatories as long as they were related they were protected by the participants were protected by the litigation privilege They in the trilogy and I forget which one of the cases it was but they go even further and clarify that the claim a bad motive is really irrelevant to these causes of action when you were talking about the litigation privilege The let me see where am I here In the Wolfe case it was a motion for judgment on the pleadings In some of these other w.phippsreporting.com cases it was motion for summary judgment And in all of these cases they found that the litigation privilege barred the causes of action that 267were being claimed The argument has been made by the other sides that because Mr Edwards or excuse me because Mr Epstein had no reason to file the original complaint that he filed that somehow or another the litigation privilege should not apply And that because he shouldnt have filed the original complaint everything that he did thereafter was an abuse of process We would put it to Your Honor thats not the standard as espoused by the Third District Court Of Appeal the Fourth District Court Of Appeal or the Florida Supreme Court The standard is Did the action have some relation to the judicial proceeding THE COURT I think at least in trying to distinguish Wolfe but at the same time taking a more global approach the Edwards side is suggesting that timing and the length of time subsequent to the settlement of the pending claims and his continuing to prosecute the suit more so on the malicious prosecution side would distance w.phippsreporting.com itself from Wolfe because in Wolfe I believe the court made clear that it was a brief prosecution of the action and was not protracted How do you respond to that concern MR BREWER I respond by quoting the Florida Supreme Court which is If the action and whether theyre talking one action actions or actions if the action is related to the judicial preceding then you have a litigation privilege THE COURT And that can go on essentially forever in your mind MR BREWER I dont know that it can go on forever because also they were talking particularly in the Levin case about protections that would be afforded to litigants But those protections would not be through a cause of action for malicious prosecution or abuse of process rather it would be through the court with contempt proceedings perhaps It would be through the Florida Bar for you know inappropriate actions taken by an attorney It could be perjury for a litigant which would be handled by the state THE COURT I dont think perjury Not if w.phippsreporting.com its guised in the litigation privilege but perhaps youre right that it could be met with standards ilR BREWER was the one I was just getting ready to get to Your Honor So there are protections against what youre talking about but again I have to go back to what did the Supreme Court tell us I did want to touch also on another point that was raised in our motion which is that the Complaint at least insofar as malicious prosecution has to fail because there is probable cause demonstrated for Mr Epstein to have filed or at least have reason to believe that he could file properly file the claim that he did file that he THE COURT Is probable cause always a legal purely legal determination MR BREWER No No If there are questions of fact that are involved with the probable cause the questions of fact are for the determination of the jury The jury the judge then takes those determinations of the jury to make a finding of probable cause But it is in the at the end of the day the court w.phippsreporting.com the issue of probable cause is a matter of law for determination by the court But the threshold for establishing 267probable cause in a civil action is really rather low Because it is whether the defendant could have reasonable what the what the defendant could have reasonably believed at the time of asserting the claim So I want to go briefly through what Mr Epstein knew or was available to him at the time November/December of First undisputed Mr Edwards was a partner at the Rothstein firm Its also undisputed and it had been admitted by Mr Rothstein that this firm was the front for one of the largest Ponzi schemes in Florida history At the time Mr Edwards was the lead attorney for three cases that were being brought by the Rothstein firm against Mr Epstein During the litigation there were numerous discovery attempts which appeared to be unrelated to those and that was trying to get flight manifests take depositions of people who may have been on flights on Mr Epsteins planes some very very prominent names And these things were w.phippsreporting.com escalating during that time period And it was very very strange In late November of there was an explanation as to why those things were going on And the Rothstein firm imploded And there was a complaint that was brought by Bill Scherer I believe down I dont know if it was Broward County or Dade County THE COURT Yeah Im familiar with all that I remember that day Do you remember that day Mr Edwards MR EDWARDS I remember it like yesterday MR BREWER In any event he filed a complaint on behalf of a group of investors that we refer to as Razorback And if I can find it Here we go One of allegations in the complaint in Razorback was additionally Rothstein used RRAs representation in the Epstein case to pursue issues and evidence unrelated to the underlying litigation but which was potentially beneficial to lure investors into the Ponzi scheme THE COURT You five out of the six of you know me very well and I always am very receptive to argument You guys know that The w.phippsreporting.com only one is Ms Haddad I think Im not sure if we met before But I just feel like the probable cause aspect just carries with it too many factual issues for me to rule as a matter of law so I dont think that I can grant relief on the probable cause issue vel non So if you will please move on to MR BREWER On that note because I was I will close THE COURT Okay Thank you very much Mr Brewer MR BREWER No I will close by THE COURT On that issue MR BREWER I will close on that issue THE COURT Very well MR BREWER But I would like to close by quoting a very prominent attorney THE COURT Sounds like a plan MR BREWER This is something that was before Judge Crow And it begins out of the attorney saying Tab Levin vs Middle Levin vs Middlebrook is the Tab No Judge Crow says I read it a thousand tirnes w.phippsreporting.com The attorneys says Yes sir I sure you have THE COURT You have to give it tci me again though ATTORNEY I will be happy to do that THE COURT This deals with the litigation privilege The attorney then goes on to say Yes sir it does deal with litigation privilege Echevarria also deals with the litigation privilege Delmonico stands for the proposition that the issues with regard to privilege are some issues of law for the court to determine And I provided Your Honor with highlighted copies Im providing opposing counsel with highlighted copies as well THE COURT Okay THE ATTORNEY Basic point here Your Honor is that the litigati9n privilege is an absolute privilege Once it is established that the actions occur within the course and scope of the litigation the privilege applies absolutely as a matter of public policy The basis of those decisions that if theres misconduct in the course of litigation w.phippsreporting.com if youre talking about improper discovery if youre filing improper motions there are remedies_ that are available to the court through the courts inherent power to control its own litigation through the contempt powers of the court through Florida Statute and through the filing of bar grievances And it will cripple the system if litigants are obligated to respond to separate litigation just because somebody has alleged you noticed the deposition that shouldnt have been noticed You filed a motion that shouldnt have been filed That prominent attorney is Mr Scarola THE COURT In an unrelated case MR BREWER In this case In this case when they were arguing that Mr Edwards was entitled to the litigation privilege with regard to Mr Epsteins complaint THE COURT Okay Who Off the record for a minute Discussion off the record THE COURT Okay Mr King please MR KING Thank Your Honor William King and Jack Scarola Your Honor for Mr Edwards who is seated with us at the table w.phippsreporting.com May it please the Court THE COURT Please MR KING In light of the Court ruling on the probable cause issue I am not going to get into all of the facts with which we did not have an opportunity to identify in detail Ill simply say to the Court that there still exists the issue of the bona fide determination they have not raised here today And so the submission of the facts that we have submitted that weve prepared for you would bear on that unless they have likewise because of factual disputes they re basically taking the position that is no longer thats no longer an issue either for purposes of this summary judgment Pursuant THE COURT Let me stop you Mr King so that youre not confused by my preliminary statements to Mr Brewer And that is that the global issue thats covered by as Mr Brewer puts it the trilogy of cases the Levin Echevarria and now this Wolfe case is not being disposed of or is not being ceded by Mr Brewer here Theyre still claiming that both counts are covered by the Wolfe Levin and Echevarria cases w.phippsreporting.com My statement is only if in fact those cases are and now the Wolfe case which is now in my view on point relative to both abuse of process and malicious prosecution claims globally if that case for some reason doesnt cover that then the elements of the malicious prosecution claim are off the table In other words I would not grant the motion because of at least those two reasons that is that I believe that there are questions of fact related to the probable cause issue as well as the bona fide determination issue additionally MR KING And I understand the Courts ruling in that regard THE COURT Okay MR KING My only point was they raised in their initial brief an issue of whether there was a bona fide termination That likewise is very fact specific THE COURT I agree and thats why I want to make clear that that standing alone the elements of the malicious prosecution claim as opposed to the abuse of process claim which I will handle separately will not muster in summary judgment in my view w.phippsreporting.com MR KING Thank you Then let me focus then on the litigation privilege Judge since thats the key issue that the Court is dealing with today THE COURT Thank you MR KING It is our position that a conflict currently exists with regards to the issue whether the litigation privilege bars a malicious prosecution claim And I have cited to the case Olson vs Johnson So2d the Second DCAs opinion in after both Levin and Echevarria And it holds that malicious prosecution claims are not barred by the litigation privilege Then you have Wolfe that stands in contradistinction to that which holds that it does Although as I ll point out in a few moments one of Judge Shepherd in his concurring opinion doesnt he doesnt rely on that on that theory Our position is that Olson vs Johnson sets forth the accurate and more persuasive proposition that is that it does not bar a malicious prosecution claim Even though Olson vs Johnson dealt with complaints by a complaining w.phippsreporting.com witness in a case that only resulted in a malicious prosecution claim leading to a wrongful arrest doesnt the facts of the case itself do not go so far as to address issues of what happens once a civil complaint is filed But the proposition that that Olson states is unequivocal that is the litigation privilege does not apply to malicious prosecution Now when we get to Judge Sassers opinion which I submit in all of the cases that have been cited by everyone Judge Sassers opinion is the most cogent most well-reasoned and rejects those very propositions that two judges in the Wolfe case adopt So let me let me just suggest to the Court THE COURT Which Judge Sasser Im trying to figure out which one you are talking about MR KING That is the decision in bear with me Judge THE COURT No problem MR KING That is the decision in Johnson vs Libow a Westlaw in THE COURT Okay MR KING It is concise Its to the w.phippsreporting.com point And Ill address that in just a few moments THE COURT All right Thanks MR KING Now whats interesting about Wolfe and whats almost inexplicable about Wolfe is that it ignores its own prior precedent by Judge Cope in his concurring decision in Boca Investors 267Group vs Potash So2d THE COURT That was a concurring opinion MR KING Yes that was his concurring opinion THE COURT Okay MR KING Of course as you know Judge Cope is very well-respected and his opinions are very articulate but it also ignores a Third DCAs full panels decision in SCI Funeral Servcies Inc vs Henry So2d at Note Third DCA opinion in both of which both Judge Cope and the panel in the SCI case note that the Supreme Courts citation in Levin to Wright vs Yurko which I cited in the memorandum which was a Fifth DCA decision back in implicitly recognizes that is the Supreme Court itself implicitly recognizes that malicious prosecution claims are not subject to the litigation w.phippsreporting.com privilege And if you read Wright vs Yurko you read Judge Copes concurring opinion and you read the panels footnote in SCI one should not come up with any other conclusion other than thats what the Supreme Court did So you have Wolfe standing in contradistinction to its own to its own precedent which they dont address at all in Wolfe and it stands importantly in contradistinction to the Supreme Courts own position on that on that doctrine I I would dare say that the Third District will always stand alone on that proposition Any other district court which is going to undertake this issue will not follow that ruling And the Supreme Court itself if it ever gets on the certs jurisdiction will not either Other courts have likewise commented that the litigation privilege would not bar a malicious prosecution claim I have cited you to the decision of Judge Corrigan in North Star Capital Acquisition LLC vs Krig F.Supp.2d M.D Fla another decision that was decided after Levin and Echevarria And the court in that case discussed let me just for a moment w.phippsreporting.com here Well the bottom line is Judge Corrigan commented about the litigation privilege and stated that neither malicious prosecution nor abuse of process would be barred by the litigation privilege I have also cited the Cruz vs Angelides the Middle District of Im sorry So2d Second DCA which also suggests that malicious prosecution would not be barred by the litigation privilege But as Ive indicated the most cogent and well articulated opinion on this subject is Judge Sassers opinion in Johnson vs Libow She expressly revoked the arguments that are raised by Wolfe which arguments of course are opposed by the assertion in Olson The court noted the following and these are the very compelling reasons why Wolfe would not apply to a malicious prosecution claim As she said Levin involved actions taken during the course of proceedings and as you remember what Levin was that was a situation where there was a motion to disqualify counsel Then ultimately when they didnft call counsel w.phippsreporting.com I they filed a separate interference claim and the court barred that on the litigation privilege But the court stated that when youre dealing with the malicious prosecution lawsuit its fundamentally different It involves the filing of a baseless action against a defendant And the purpose of a malicious prosecution action is to prevent vexatious prosecution or litigation The purpose of the litigation privilege she stated expressly is not to preclude the tort of malicious prosecu ion And if the litigation privilege was applicable to the filing of a suit the tort of malicious prosecution would not survive And as the Court is well aware the malicious prosecution has been recognized as its an ancient tort in Florida Its always been around The Supreme Court has addressed it in the past specifically And one cannot lightly accept the proposition that the Supreme Court which itself has indicated implicitly indicated at least that the litigation privilege would not bar a malicious prosecution claim That the Supreme Court itself would not adhere to the those rulings and overturn a century of law recognizing the tort w.phippsreporting.com Li f,-a of malicious prosecution We also submit that Wolfe is distinguishable because the litigation privilege was applied to the attorneys in that case The attorneys were involved and I need not go over all of the facts of the case but it was a very very brief involvement by the lawyers As I suggested in the brief lawyers may end up being given a broader immunity under the litigation privilege because of their obligations to th ir clients to carry out their legal and ethical responsibilities And the facts of that case are somewhat compelling in that the attorneys who make a brief appearance shouldnt be exposed to all of this Maybe their maybe the thought process was something along the lines well we dont want to put the attorneys through this This should be cut out right at the beginning TB COURT Off the record for one second MR KING Yes Discussion off the record MR KING And I cited the Taylor case which was a Supreme Court of Idaho decision which discusses that issue and which shows that for w.phippsreporting.com those very reasons that I identified lawyers should have a greater opportunity to opportunity to seize upon immunity which would cut off their liability early on So whether its a qualified immunity or absolute immunity discussed in that decision whatever perhaps that was the a factor or although they don cite to Taylor but maybe thats a factor in Wolfe THE COURT I guess I understand your position that youre taking in terms of in the Wolfe context because as I indicated to Mr Brewer during his argument the court made it a point to indicate the very brief involvement of the Kenny Knachwalter firm But since I did ask question off the record Ill indicate what I did ask was whether or not Mr Epstein was represented at all times material to the allegations now made by Mr Edwards And Mr King has answered in the affirmative Im having difficulty then with trying to reconcile why the claim was only brought against Mr Epstein as opposed to his attorneys especially where the emphasis has been made quite strongly that despite the settlements that went on Epstein essentially himself as related to the w.phippsreporting.com court was the guiding influence here in proceeding against Mr Edwards in a for a for a time period.that you believe is actionable MR KING Well one response without going into the entire tortured history of Mr Epsteins actions and the various machinations that he undertook the initial complaint which charged Mr Edwards with all sorts of horrific crimes fraud perjury conspiracy to commit perjury securities fraud general fraud extorsion all all specific crimes that were alleged against him the lawyers who were involved in that case withdrew They abandoned those claims Well we cant ask them why but I submit that what happens is the evolution of that case then becomes a case involving merely I shouldnt say merely abuse of process abuse of process So one response is that a situation that that you that is sort of suggested by perhaps the court in Wolfe and in desiring to protBcting lawyers who recognize what happened and then get out of the case They realize that whatever they were told by their client and we submit that for example w.phippsreporting.com the attorneys would not necessarily know what Mr Epstein had in his mind We know what Epstein had in his mind because I have outlined somewhat in the papers here the huge amount of evidence accumulated by not only Mr Edwards but the federal government by the state government which showed that not only was did he abuse Mr Edwards clients repeatedly from the time they were and years old he was abusing girls as young as years old He was having he was having orgies on his airplane one of those indications that they may have had reference to in their papers and earlier made reference here about why was discovery pursued by Mr Edwards But they the lawyers are just not A theyre not_ sued Thats not a situation that we re facing here THE COURT I know that MR KING And for the very reasons that Taylor talks about its just unwise it seems to me to pursue lawyers in a case where you may know inside whats going on with Epstein and why hes doing what hes doing And thats a fine line that the lawyers have to face in every case when do I step out w.phippsreporting.com The original lawyers in this case did step out And those claims were all abandoned And I think that speaks volumes All of that of course goes in part to the issues of malicious prosecution which we would ultimately argue if I had to get into those facts I hope that answers your question I mean Epstein stands in our from our standpoint in a completely different position than the lawyers at this stage of the proceedings despite the fact that after he settles the claims he then continues to pursue the allegations And to us your review of the size of those settlements would have an impact on all of the issues not on this particular issue that were talking about now But if we had to get into those facts and the court took a look at what those settlements were in camera then we would believe that that would be thats a strong indication that all of this stuff that he seized upon that Edwards seized upon MR BREWER Excuse me Your Honor Motion For Summary Judgment is supposed to be something that is in evidence and in record and its not THE COURT Yeah I have no plans on w.phippsreporting.com reviewing the size of the settlement amounts They dont phase me at all And I I dont it seems since they agreed to be confidential I think we should respect that MR KING And I understand and since were not even discussing these and I may be going further than what your concerns were about the lawyers involvement in the case and why they wouldnt be sued in a case like this THE COURT What Im saying is I can understand both sides argument But on the one hand its interesting that the line of cases here on this immunity issue often bears on the facts of the cases Meaning the most repugnant they take theres a more liberal approach The Wolfe case where the Kenny Knachwalter firm abandoned the claims immediately there a more conservative approach And I tend to tended tended to notice that while I was reviewing the cases which is understandable certainly But the the what I said about both sides is yes I can see in a situation where the attorneys quickly abandoned the case theres the indication that a claim would not lie However where I where I have the representation made w.phippsreporting.com without controvert that Epstein was represented throughout the process so to speak even after the settlements were effectuated but represented nonetheless by counsel I can also see the other side where it could it could weaken the argument that Epstein would be at the control so to speak MR KING Well it its our position that the mass of evidence which we have some of which I just outlined reflects that Mr Epstein seized upon a convenient situation the RRA implosion to use that as a sword against Mr Edwards And it became it was personal with him and he knew that the allegations against him by not only his own clients were true And as you know ultimately what happens is the attorneys dismiss the case on the eve of the Motion For Summary Judgment And Mr Scarola corrects me I wasn in in those the earlier stage but he indicates that two sets of lawyers got out THE COURT Thatts okay Thats fine MR KING But in any event then on the eve of the summary judgment motion we submit that the last set of lawyers gets out because they w.phippsreporting.com withdraw those claims or dismiss those claims because they are faced with the knowledge that they couldnt uncover one iota of evidence that Mr Edwards was guilty of anything His name never appeared in the public in any public documents were filed They took his deposition for days They have never been able to uncover one piece of evidence that would remotely suggest that he was involved So the bottom line is I really probably have gone further than the Court THE COURT No not at all MR KING and I apologize for that THE COURT I just want to give you a ten-minute warning now but MR KING All right THE COURT Dont these cases though teach us that essentially no matter how repugnant the judicial conduct process the conduct during the judicial proceedings I should say no matter how far repugnant the conduct during the judicial proceedings may be as long as they are within the judicial proceeding there is this immunity that exists particularly for an abuse of process claim w.phippsreporting.com The malicious prosecution claim I am more on the fence But on as far as the abuse of process claim is concerned and theres that balancing that is taken into account that I believe its talked about primarily in the Levin case about the full disclosure within the lawsuit venue versus someone facing liability because of what may be alleged in a complaint or during a deposition or something along those lines As long as its within the judicial proceeding and again no matter how repugnant it may be is there not this immunity afforded by the appellate courts that would extend at least to the abuse of process claim And tell me if not why not please MR KING We acknowledged in the memo that both in the T0ird and the Fourth in the Fourth in the American National Title Case both applied the doctrine to the abuse of process claim The full import of how far that will go because each of those cases again involved lawyers But the question is Will that in the future because again that tort abuse of process has been around a long time But the American National case was And also the LatAm case which was a precursor to Wolfe on that w.phippsreporting.com issue the litigation privilege and the abuse as it applied to the abuse of process that case was cited by Wolfe So you had you had some rational prongs that Wolfe could latch onto in terms of the issue of the application of litigation privilege to abuse of process And we would distinguish it on we would distinguish those cases based on the fact that lawyers only were involved We would also maintain that that THE COURT I guess Mr King what it comes down to is shouldnt lawyers know better than the litigants themselves And again if I would be a bit more receptive to your argument if I was told Epstein filed these documents prose Because he is at least you know to a degree an educated individual He has a background I believe in finance So you know there could be those facts that could be developed within his educational purview within his experience purview within his own personal vendettas that he may have with Mr Edwards But again shouldnt lawyers know better The lawyers are continuing this plight on behalf their client Why is Epstein the one who is the w.phippsreporting.com focal point of this abuse of process claim MR KING And again I would go back to the role that lawyers have in walking that ethical line walking that legal line walking the line where they have to advance their client cause as best they can And when it comes to that point where they recognize that no these claims are false theres no basis for us to proceed then they get out And now as I advised two firms did that before The last firm came in and dropped their dropped those claims on the eve of summary judgment So one to me as I shouldnt say that To to Mr Edwards in this particular case we see a clear distinction And that distinction is you dont go after the lawyers for these claims if you recognize that there is a that they have acted within the bounds of arguably of their ethical responsibilities and legal responsibilities to their client They have to zealously advocate for him But that doesnt excuse him That doesnt excuse an individual who over all those years were committing those heinous acts against not only Mr Edwards clients but w.phippsreporting.com many many others THE COURT But those heinous acts as have you communicated and I wont take a position one way or the other on the acts but Im just picking up on what you just said but they have nothing to do with this case itself on the claims of abuse of process and malicious prosecution They just simply dont I mean you may suggest to me that they have something to do with them from the standpoint of Epstein dissatisfaction with the settlement or whatever may have been attributed to that but they really have nothing to do with these claims MR KING Well with the litigation privilege I will acknowledge other than what I have already argued the situation was different wherein in for example Wolfe he had the brief appearance by the lawyer and Judge it was Judge Shepherd in his concurring opinion didnt embrace that What he said was Look theres two elements and malicious prosecution doesn even exist here Lets get rid of it THE COURT Right MR KING I would just suggest that the facts that I have outlined and which we have in w.phippsreporting.com all of the materials that we submitted to you all of those facts are they they do go to the 267other issues that you arent addressing here the factual issues on good faith and the factual issues on bona fide termination And so with that reservation I would suggest that the only other reason why these facts are so significant is because anybody sitting a court sitting back and looking at the landscape here would have to ask themselves look in light of for example Judge Sassers opinion and the reasons why we have malicious prosecution claims and why they would survive is because of something just like this And Im getting back to the litigation privilege and malicious prosecution I really have ended my comments on that but I just wanted to address your concerns about why all of these facts might impact THE COURT No Go right ahead MR KING And those facts impact because what it does is it cries out and it shows you that this is hy a malicious prosecution claim should survive the litigation privilege When you have a torrent of evidence that hes comitted these acts and that he knows that the attorney for those w.phippsreporting.com clients has acted appropriately and at every stage he was involved before he ever got associated before Mr Edwards ever got associated with RRA and he continued them on after he did it He does pro bona work for clients as you know in the federal case He knows that Epstein knows that And thats why the facts are important to malicious prosecution claims because as Judge Sasser says the idea here the concept here on a malicious prosecution claim is this is this is the kind this is why the privilege shouldnt apply because the vexatious prosecution of a claim is something that the law will recognize And everything that we have put into the record about Epsteins involvement shows that this use of that lawsuit was a pretext And that he had every evil motive in the world to pursue these claims and continue those claims after Mr Edwards settled those claims Mr Epstein settled those claims So my only other comments is to try to address your concerns vis-a-vis the issue of abuse of process Thats more difficult Its more difficult because we have the Fourth opinion and w.phippsreporting.com the Thirds precursor opinion so it it it clearly is problematic We our our position on it is essentially this Judge Corrigan in his opinion in the case that I cited says the privilege shouldnt apply either Then you have what we submit are egregious facts which should including a settlement and he continued prosecution afterwards which we submit it is going to be the lights going to go off and say Whoa wait a minute we cant we cant count this the application of privilege in the context of these facts Your concerns are legitimate and well expressed No matter how egregious the facts perhaps that wont make a difference to the application of the privilege to to an abuse of process claim perhaps But we submit for the reasons that we have identified that the litigation privilege should equally not apply to the abuse of process claim for those reasons THE COURT Malicious prosecution MR KING Okay Well certainly to malicious prosecution But also your last concern w.phippsreporting.com THE COURT Your position is I think it does apply to abuse of process MR BREWER Right MR KING But certainly not malicious prosecution for the reasons that are well-articulated by Judge Sasser and others And with regard to the reasons Ive just expressed to the abuse of process claim And make sure I didnt miss anything THE COURT Three minutes to wrap up MR SCAROLA And Im going to use two of them if I may Your Honor THE COURT Any objection MR BREWER Yes Your Honor Theyre not allowed to split This is not you know a rebuttal on their part THE COURT I agree MR BREWER So theyre not allowed to split it MR SCAROLA May I have just a moment THE COURT Absolutely Take your time But I do believe that protocol would dictate only one attorney speak to the issues MR KING Right THE COURT Thank you w.phippsreporting.com I have Judge Sassers opinion I have it right here or I should say her order as opposed to the opinion MR KING All right You have that And just to wrap up then Judge with regard to the comments in Levin about the other the availability of other remedies that are that would exist against attorneys if the you know if the privilege were not applied to the attorneys as in Levin there are a myriad that the court has Much more difficult when it comes to an individual And I I think there was one other comment made Let me just double-check my notes Counsel had referenced the abuse of process claim and whether the facts support the abuse of process claim We submit from that standpoint they do Weve satisfied all of the elements They they and the last comment Ill make here is their focus was you cant have an abuse of process claim based upon the pursuit of all of these actions that were taken during the course of the proceedings And we submit that under the circumstances of this case where this claim was commenced against Mr Edwards during the course of his prosecution of the underlying claims w.phippsreporting.com and while multiple other claims were being pursued against him that under those circumstances the abuse of process claim does survive a challenge to whether or not we have satisfied the elements The process thats involved in the abuse of process claim is the lawsuit The subsequent actions that all of the cases talk about are in our case the pursuit of all of those efforts during the course of the of that case And they were all done for an ulterior motive Weve satisfied those elements I dont have the time to get into all of the facts I tried to give you the essence of what we had by citing to the statement of undisputed facts Mr Edwards affidavit the materials relating to the filing of our motion for punitive damages which was granted We gave you the depositions because unfortunately to really grasp the entire background on this you almost have to read the entire depos I tried highlighting and pulling them out for you but I couldnt really do that So I apologize THE COURT No thats okay MR KING But that would end my argument I appreciate your courtesy w.phippsreporting.com your THE COURT Thank you and Mr Brewer for MR BREWER A few moments Your Honor THE COURT Sure tdR BREWER I forgot to ask you if I could address you from the chair here rather than the podium THE COURT Thats fine No I wanted to thank Mr King and Mr Brewer for their initial arguments and I appreciate very much the professio_nal MR BREWER Your Honor you seemed to be a little bit more troubled with regard to the malicious prosecution aspects here Id like to point out to you that in the case the Wolfe case specifically they stated because the law is clear that the litigation privilege applies to abuse of process we affirm the trial courts order granting judgment on the pleadings in favor of the defendants below as to that cause of action Although the law is not as clear whether the litigation privilege also applies for the cause of action for malicious prosecution we conclude that it does and affirm the trial courts order finding that the litigation privilege also applies to a w.phippsreporting.com cause of action for malicious prosecution That was actually the issue before them because it had already been determined that the litigation privilege applied to the abuse of process in both the Third and the Fourth District Courts of Appeal Thats admitted by the counterclaim in their motion in opposition I wanted to speak about this idea that the worst the actions were of Mr Epstein and/or his attorneys that somehow or another theres a sliding scale And if you worked longer on the case or if you put in more pleadings or whatever that somehow or another that would have an effect Thats not something that I have seen anyway in the trilogy of cases In fact what is said in the trilogy of cases is if the litigation privilege applies its an absolute privilege Absolute The Olson vs Johnson was mentioned to you to say that to indicate that the that malicious prosecution can still survive and exist And in fact the Olson case which was a case in which three ladies accused this guy of stalking filed a false police report The guy got arrested Actually I think I rn not sure if he went to w.phippsreporting.com trial but he was able to establish that he was six miles away at the time of the alleged stalking And.the ladies just lied to get him in trouble The Olson case was addressed in the Wolfe case and it said Wait a minute that is a cause of action for malicious prosecution will stand there because that was an action that was taken outside of the judicial process THE COURT And that and thats you know where you know Ill ask Mr King to briefly address this as well But you know the dilemma the court has here is the language that is reaffirmed in Wolfe and extracted from the Echevarria matter from the Florida Supreme Court And they quoted and say that Echevarria reaffirmed the proposition and Im using my own words by saying the proposition that quote absolute immunity must be afforded to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding And they clarify that although not all statements made outside of the formal judicial process are protected by the litigation privilege an absolute immunity applies to conduct occurring during the w.phippsreporting.com course of the proceedings So that seems to tell me that if Epstein is filing a complaint if Epstein is seeking discovery if Epstein is making obnoxious allegations against Edwards and I again not taking a position one side or the other thats why Im using the word if to preface all of my commentary as long as it has some relation to the proceeding it is afforded absolute immunity If youre sitting in my shoes Mr Brewer or better yet sitting in Mr Edwards shoes what would be his best argument to defeat your motion on malicious prosecution MR BREWER I don know that they have one Your Honor in light of Wolfe Not at this level THE COURT Is there anything that you can fathom as an officer of the Court that they are claiming Epstein did in either the abuse of process or the malicious prosecution claim and as I said Im more concerned with the malicious prosecution claim that Epstein did outside of the judicial proceedings Is there anything alleged here that he did outside of the judicial proceeding such as I saw in the damages w.phippsrepor ing.com portion of the argument made by the Edwards side and I think it may have had some relation to Judge Crows questions about damages relating to Mr Edwards some that but I saw that there were that Mr Edwards felt there was some threat to his or to him and his family Has there been any such threats made to your knowledge by Mr Epstein that would have gone to him or his family MR BREWER Your Honor Im late to the game I was not a participant or counsel here until oh probably three or four months ago I have done my best to familiarize myself in what has gone on prior but its voluminous And so I cant swear to you that Ive read everything or seen everything I however have no knowledge of Mr Epstein making any threats to towards Mr Edwards THE COURT Im just using that as an example MR BREWER Well I dont have any knowledge of him making threats to Mr Edwards or to his family THE COURT Anything outside of the judicial proceeding as potentially or allegedly w.phippsreporting.com obnoxious And as Mr King brought out earlier the allegations being horrifying egregious no matter how you might identify those allegation that were quickly withdrawn anything that youre aware of that went on outside of the judicial process that is being alleged here MR BREWER Not that is being alleged here Your Honor no THE COURT Mr King anything that being alleged here that goes outside of the broad spectrum that I have read into the record that has its genesis in Echevarria and was quoted by the Wolfe Third District Court of Appeal opinion MR KING Theres nothing alleged Mr Edwards testimony though was that he was being stalked by an investigator which gave him the additional concern But thats not specifically alleged as a matter that you know that forms the basis for the malicious prosecution or the abuse of process claim Its not specifically set forth in the pleadings THE COURT How do I get around this Echevarria language Again I recognize whats gone on here but personal empathy doesnt have any part in a courtroom It just doesnt and w.phippsreporting.com shouldnt I ruled in your favor and Ive ruled against you Ive ruled in Mr Goldbergers favor Ive ruled against him Ive ruled in favor of Mr Edwards claims and contentions Ive ruled against him But Im just having difficulty coming away from the reaffirmation of the Florida Supreme Courts blanket statement here that absent extra judicial activity everything that is occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding is subject to absolute immunity MR KING If I may THE COURT Absolutely MR KING Levin neither Levin nor Echevarria dealt with the malicious prosecution claim which is really what Im going to focus on now THE COURT But now Im dealing with and again forgive me for interrupting but just to make clear the precedential value that I have to ascribe to Wolfe and as you indicated the Fourth in its case seems to at least from the abuse of process part of the matter align itself with that same side The Third District Court of w.phippsreporting.com r.J Appeal is an appellate court that I must follow unless theres a specific ruling to the contrary by the Fourth District Court of Appeal And the Third is crystal clear in its analysis Whether you or I agree with it is not for me to say But its analysis is abundantly clear and it again reaffirms the Supreme Court language that talks about where were within the judicial proceeding as repugnant as it may be as long as it bears relation some relation just let this be the rather broad language utilized by the Supreme Court of Florida absent extrajudicial process extrajudicial actions better stated I left with this legal analysis while cogent its clear while short its clear MR KING But that is why all of the positions that I have articulated that would suggest that Levin nor Echevarria would apply to a malicious prosecution claim because it is distinctly different from the nature of just as Judge Sasser says Its not something that is going on during the course of proceedings Its the proceeding itself Now thats what Wolfe Wolfe takes the position otherwise It says Well that that __ w.phippsreporting.com clearly falls within the privilege THE COURT And Wolfe is the binding precedent With all due respect to my suite mate shes not And you know as a fellow circuit court judge again her opinion is meticulous and well-written but it flies in the face of precedential value here and that is the Wolfe case that ties the bow so to speak around the malicious prosecution case Where there may have been before something to hang ones hat on the probable cause issue as I described before clearly a factual issue Whether the case ended in a bona fide termination in favor of Mr Edwards subject certainly to factual review But that but the elements are taken away from us in my view from a trial courts decision-making and werre left with the global analysis that was rendered by the Third District Court Of Appeal And the bow is tied to include malicious prosecution cases as long as those actions as alleged and conceded by you and I appreciate incredibly the concession but as conceded that all of the allegations contained in the operative Fourth Amended Complaint relate to the judicial w.phippsreporting.com proceeding in some form MR KING If I may Judge just a final conclusionary remark THE COURT Absolutely Please MR KING I would harken back to the impact of Olson which even though it does not deal with a post-civil complaint issue such as you have here the language of the opinion is the litigation privilege does not apply to malicious prosecution There is we submit that that sets forth at least a conflict on that issue that allows you to then peruse all of the issues that I discussed THE COURT Let me look at that Olson case specifically please MR BREWER I have a copy here if you would like Your Honor THE COURT No You have both done an excellent job in tabbing all of these materials and I want to again compliment both sides on their presentations and their performance as well as well presentations Its extremely gratifying especially when Ive had I think hearings in addition to the today to see the kind of advocacy that Im seeing here at this hearing w.phippsreporting.com But I will take a quick look at that Tab that I have Thank you The Olson case that is cited in and Ive read somewhat quickly but I believe Ive picked up the genesis And the import of the opinion deals with prelitigation statements made by an individual who is accusing Olson of stalking And the court distinguished that claim privilege from a defamation case that was addressed in a case called Fridovich vs Fridovich So2d Florida Supreme Court case in which the Supreme Court was presented with a certified question of whether a person who makes statements to law enforcement about another individual prior to the instigation of judicial proceedings And that is important here I think in our review of the case since those statements that were made allegedly by the accuser in Olson were made prior to the instigation of judicial proceedings and whether those statements were protected by an absolute privilege for liability against defamation and the court held that defamatory statements voluntarily made by private individuals to the police or to the States Attorneyrs Office before institution of criminal w.phippsreporting.com charges are presumptively qualifiedly privileged And such voluntary statements are treated differently than statements made under the State Attorneys investigatory subpoena which are encompassed within a judicial proceeding and thus are absolutely privileged So there is that distinguishing characteristic here as well And again the issue was met head on by Wolfe It was not discussed in the Olson case respectfully that I can gather here So based on the Third District Courts decisions in Wolfe quoting in large part from the Florida Supreme Courts decision in Echevarria whereas here all of the allegations made in both the abuse of process claim and the malicious prosecution claim as conceded by the Edwards side are acts occurring during the course of a judicial proceeding and bear some relation to the proceeding the Court has no other alternative than to grant the motion on both counts MR BREWER Your Honor _I have prepared an order which I think fairly closely it does not have in it about the conceding the points but it does grant the motion based upon the cases that you have just indicated w.phippsreporting.com THE COURT I would ask you to kindly go ahead and order the transcript and track the language that I have tried to utilize here distinguishing Olson as well in following the Supreme Courts directive in Echevarria and the Third District Court of Appeal dictates in the Wolfe case MR BREWER Yes Your Honor THE COURT Thats the cornerstone of the Courts decision Again thank you all very very much for your input and your professionalism and your arguments No one could have done a better job on both sides So thank you very much MR BREWER Thank you Your Honor THE COURT Thank you Madam Court Reporter THE COURT REPORTER Thank you Your Honor Thereupon the proceedings were concluded at p.m w.phippsreporting.com STATE OF FLORIDA COUNTY OF PALM BEACH COURT CERTIFICATE I Robyn Maxwell Registered Professional I Court Reporter State of Florida at Large certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and complete record of my stenographic notes Dated this 29th day of January RPR FPR CLR SYSTEMS ADMINISTRATO w.phippsreporting.com A abandoned able absent absolute absolutely abundantly abuse abusing accept account accumulated accurate accused airplane answered accuser addressed align answers accusing addressing allegations anybody aclmowledge adequately anyway acknowledged adhere apiece Acquisition Administrator alleged apologies act ADMINISTR apologize acted admitted apology action adopt apparently advance allegedly Appeal advised allowed advocacy allows advocate alternative Appeals actionable affidavit amended appearance actions affirm amendments APPEARAN affirmative American appeared afforded amount appearing activity amounts appellate aforesaid acts analysis applicable afternoon analyzed application addition ago ancient applied additional agree and/or additionally applies agreed Angeli des address ahead answer w.phippsreporting.com apply appreciate approach appropriately arguably argue argued arguing argument arguments arrest arrested articulate articulated ascribe asked aspect aspects begins asserting background behalf assertion bad associated balancing attempt believe bandied attempts bar ATTERBUR attorney BARNHART believed barred beneficial attorneys best bars based better Attorneys baseless Bill attributed Basic binder Australian basically binding authorized basis bit availability blanket Beach available Board Avenue bear Boca aware bona bears bed bono began bottom back beginning Boulevard l.H."i __ w.phippsreporting.com bounds bow Bradley Brewer brief briefly broad broader brought Broward Brown call called charges coming camera Chester comitted Capital circuit commenced care circumstances comment clarification carries cause citation commentary clarify carry cite commented case cited clear comments commit causes citing clearly committing civil client communicate caveat claim compelling ceded clients complained century complaining certainly clients complaint close CERTIFICA certified closely certify CLR certs cogent complaints chair complete claimed cold challenge completely claiming COLEMAN changed compliment claims come cases characteristic conceded comes charged conceding i.:r i.e __ i w:phippsreporting.com concept concern concerned concerns concession concise conclude concluded conclusion conclusionary concurring conduct confidential conflict confused confusing conservative conspiracy contained contains contempt contentions counterclaim context Crows continue Cruz counts continued crystal continues County current continuing currently course contradistinct cut contrary control Dade controvert damages court convenient courtesy dare Cope Courthouse DATE Capes courtroom Dated copies courts dates copy courts day cornerstone correct days correction DCA cover correctly DCAs covered corrects deal cries Corrigan climes dealing counse1 criminal deals cripple dealt count Crow decided iit J"tl w.phippsreporting.com decision decisions decision-maid defamation defamatory defeat defendant defendants defended defenses degree Delmonico demonstrated denied DENNEY depos deposition depositions described i desiring discussed Dixie despite doctrine discusses detail documents discussing determination doing Discussion Donald determination dismiss double-check determine dismissal dropped determined dismissed due determining disposed developed disputes earlier dictate disqualify dictates dissatisfaction early difference distance easier different distinction Echevarria distinctly distinguish differently distinguishabl difficult distinguished difficulty educated distinguishing dilemma Education district directive educational disclosure Edwards discovery division 225iil w.phippsreporting.com effect effectuated efforts egregious either elements embrace empathy emphasis encompassed ended enforcement entire entities entitled Epstein Epsteins equally escalating especially espoused ESQUIRE essence essentially establish established establishing ethical eve event everybody i iiJiJt evidence e:drajudicial family extremely far evil fathom evolution face favor exactly faced example facing federal fact excellent feel excuse fellow factor felt exist facts fence exists fide experience Fifth explanation figure exposed factual file expressed expressly fail filed extend fairly extension faith extent falls filing extorsion false extort familiar final extra familiarity finance extracted famiJiarize imd J;.j w.phippsreporting.com finding fine I fit I firms first five FL Fla flies flight flights Florida focal focus follow following footnote foregoing further hand forever GOLDBERG J1andle forget future Goldberger handled forgive F.Supp.2d good hang forgot government happened form game grant happens formal gather format general granted happy forms genesis granting harken Fort getting grasp hat forth girls gratifying head give greater headed found grievances hear four given group heard fourth global guess hearing globally hearings guiding Fourths go heinous guilty FPR held guised fraud Henry guy Fridovich highlighted guys front goes highlighting full going Highway Haddad fundamentall history Funeral Hafele i_ I w.phippsreporting.com holds Honor hope horrific horrifying hour _.ours huge I Idaho idea identified identify ignores immediately immunity impact impeachment implicitly imploded implosion import important importantly improper inappropriate include including incredibly independent indicate indicated indicates indication indications individual individually individuals inexplicable I 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unfortunately violations trouble United Virginia troubled unrelated vis-a-vis true volumes untrue try voluminous unusual trying voluntarily unwise voluntary turn use vs two utilize utilized value ulterior various ultimately vel wait uncover vendettas walking underlying venue want understand versus vexatious understandab viable wanted understands victim undertake warning victims underto wasnt undisputed victims way w:phippsreporting.com Wbk searcyl wcblaw aol.c weaken WEISS Welcome well-articulate well-reasoned well-respected well-written went West Westlaw Westlaws were weve whatsoever Whoa William withdraw withdrawn withdrew witness year Wolfe years yesterday young Yurko zealously word words work worked 6th 29th world worst 15th wouldnt wrap 7th Wright written wrongful Yeah w.phippsreporting.com 9C FOURTH DISTRICT COURT OF APPEAL STATE OF FLORIDA BRADLEY EDWARDS Appellant JEFFREY EPSTEIN Appellee I CASE NO L.T Case No ANSWER BRIEF OF APPELLEE JEFFREY EPSTEIN TONJA HADDAD COLEMAN ESQ Florida Bar No TONJA HADDAD PA SE 7th Street Suite Fort Lauderdale Florida facsimile Tonja Tonjahaddad.com JOHN BERANEK Fla Bar No AUSLEY MCMULLEN P.A South Calhoun Street P.O Box zip Tallahassee FL Telephone Facsimile jberanek ausley.com TABLE OF CONTENTS TABLE OF CITATIONS ii PRELIMINARY STATEMENT STATEMENT REGARDING ORAL ARGUMENT STANDARD OF REVIEW STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT AS THE LITIGATION PRIVILEGE IS A BAR TO APPELLANTS CLAIM BASED ON MALICIOUS PROSECUTION CONCLUSION CERTIFICATE OF TYPE SIZE AND STYLE CERTIFICATE OF SERVICE TABLE OF CITATIONS Cases American Federated Title Corp Greenberg Trauig P.A So 3d Fla 3d DCA American Nat Title Escrow of Florida Inc Guarantee Title Trust Co So 2d Fla 4th DCA DelMonico Traynor So 3d Fla Echevarria McCalla Raymer Barrett Frappier Cole So 2d Fla passim Fridovich Fridovich So 2d Fla Graham-Eckes Palm Beach Academy Johnson So 2d Fla 4th DCA Jackson Attorneys Title Insurance Fund So 3d Fla 3d DCA Jackson BellSouth Telecomms F.3d 11th Cir LaFrance US Bank National Association So 3d Fla 4th DCA LatAm Invests LLC Holland Knight LLP So 3d Fla 3d DCA Levin Middlebrooks Moves Mitchell P.A US Fire Ins Co So 2d Fla passim McCullough Kubiak Feb Microbilt Corporation Chex Systems Inc WL Dec Montejo Martin Memorial Medical Center Inc So 2d Fla 4th DCA Olson Johnson So 2d Fla 2d DCA Pardo State So 2d Fla Procacci Zacco So 2d Fla 4th DCA R.H Ciccone Properties Inc JP Morgan Chase Bank N.A So 3d Fla 4th DCA Rivernider Meyer Case Number SCI Funeral Services of Florida Inc Henry So 2d Fla 3d DCA Steinberg Steinberg So 3d Fla 1st DCA Valdes GAB Robins So 2d Fla 3d DCA Volusia County Aberdeen at Ormond Beach L.P So 2d Fla Wolfe Foreman So 3d Fla 3d DCA passim Wright Yurko So 2d Fla 5th DCA PRELIMINARY STATEMENT This matter arises from the Appellant Bradley Edwardss appeal of the trial courts final Order granting Appellees Motion for Summary Judgment In this brief the parties will be referred to as they appear before this Court or by the partys proper name References to the Record will be made by the use of which is the transcript of the Summary Judgment Hearing and __ which is the record proper The denotation to the record will be followed by the page number where the item to which Appellee is referring may be found References to the Appellants Brief will be denoted by Brief and followed by the page number to which Appellee is citing Emphasis will be that of Appellee unless otherwise noted STATEMENT REGARDING ORAL ARGUMENT Appellee respectfully requests that this Court permit oral argument in this matter The issue presented by this appeal whether the litigation privilege absolutely bars a claim for malicious prosecution when all of the actions upon which the Plaintiff relies in support of his lawsuit occurred during the course of litigation and relate directly to the litigation is such that oral argument would be of crucial importance on this issue STANDARD OF REVIEW In reviewing an order granting final summary judgment by the trial court this Court must apply the de nova standard of review De/Monico Traynor So 3d Fla Volusia County Aberdeen at Ormond Beach L.P So 2d Fla LaFrance U.S Bank National Association So 3d Fla 4th DCA The trial courts finding that the litigation privilege applies to malicious prosecution claims as well as its finding that the litigation privilege was applicable specifically to Edwardss claims for malicious prosecution and abuse of process against Epstein constituted issues of law De/Monico So 3d at stating the determination of whether the litigation privilege extends to the alleged tortious conduct is a pure question of law Wolfe Foreman So 3d Fla 3d DCA affirming the determination that the litigation privilege applied to plaintiffs malicious prosecution case on a motion for judgment on the pleadings LatAm Invests LLC Holland Knight LLP So 3d Fla 3d DCA affirming the finding that the litigation privilege applied to plaintiffs abuse of process claim on a motion to dismiss rev denied So 3d Fla STATEMENT OF THE CASE AND FACTS In December Appellee Jeffrey Epstein filed suit against Scott Rothstein Rothstein and Appellant Bradley Edwards based upon Epsteins justifiable belief at the time of filing his Complaint that these two individuals and other unknown partners of theirs at Rothstein Rosenfeldt Adler engaged in serious misconduct involving a widely publicized illegal Ponzi scheme operated through their law firm Rothstein himself admitted to and was convicted for this Ponzi scheme part of which featured the use of civil cases that had been filed against Epstein by Appellant Rothsteins law partner In response to Epsteins original lawsuit Edwards filed a Counterclaim and after a series of dismissals and four revisions Edwards stated two causes of action against Epstein Abuse of Process and Malicious Prosecution Epstein denied liability as to those claims and asserted various affirmative defenses thereto including the immunity afforded to Epstein for both causes of action under the litigation privilege In September Epstein filed his Motion for Summary Judgment asserting therein among other arguments that both causes of action were barred by the litigation privilege The trial court after allowing the parties to fully brief the issues and present an exhaustive and extensive oral argument granted Summary Judgment in favor of Appellee relying upon the facts as presented by the parties the binding case Wolfe Foreman So 3d Fla 3d DCA and all of the Florida Supreme Court cases cited thereby Both in his Motion for Summary Judgment and at oral argument on the Motion Appellee argued and Edwards conceded that Edwardss cause of action for Malicious Prosecution was based solely upon acts that occurred during the course of the litigation Edwardss Fourth Amended Counterclaim and his discovery responses to questions directly germane to his causes of action incontrovertibly revealed that both of Edwardss causes of action were barred by the litigation privilege as all of the actions purported to give rise to Edwards causes of action occurred during the course of and were related to the litigation The trial court applying the litigation privilege to Appellants causes of action correctly determined that the litigation privilege absolutely barred both causes of action As stated in Wolfe Foreman So 3d Fla 3d DCA and the binding Florida Supreme Court cases cited therein Floridas litigation privilege provides to all persons involved in judicial proceedings a privilege from civil liability for actions taken in relation to those proceedings including in an action for abuse of process or malicious prosecution Id In reliance upon these cases and the facts presented the trial court granted Summary Judgment in Epsteins favor SUMMARY OF THE ARGUMENT The solitary issue before this Court is whether the litigation privilege applies to a cause of action for malicious prosecution when all acts upon which Appellant relies in support of his cause of action occurred during the course of litigation and related directly to the litigation Under well-established Florida Supreme Court precedent the litigation privilege applies to all causes of action See Echevarria McCalla Raymer Barrett Frappier Cole So 2d Fla Levin Middlebrooks Moves Mitchell P.A U.S Fire Ins Co So 2d Fla Additionally the Third District Court of Appeal in Wolfe Foreman So 3d Fla 3d DCA concluded that the litigation privilege applies to a cause of action for malicious prosecution Appellant seeks reversal of the final Summary Judgment as to his Malicious Prosecution claim erroneously arguing that the litigation privilege does not apply to a cause of action for malicious prosecution and that Wolfe is in conflict with pre-existing law on this issue See Brief Appellant does however concede that Summary Judgment was proper as to his Abuse of Process claim see Brief and that there are no disputed issues of fact presented Brief Appellee submits that the trial courts Order granting his Motion for Summary Judgment was proper as the binding decisions by the Florida Supreme Court in Echevarria McCalla Raymer Barrett Frappier Cole So 2d Fla and Levin Middlebrooks Moves Mitchell P.A U.S Fire Ins Co So 2d Fla the decision by the Third District Court of Appeal in Wolfe Foreman So 3d Fla 3d DCA and the recent per curiam affirmance by the First District Court of Appeal in Steinberg Steinberg So 3d Fla 1st DCA all mandate the trial courts ruling Edwards has not identified a single Florida case decided after either the Wolfe decision or the Florida Supreme Court cases upon which the Wolfe court relied in rendering its ruling that establishes that the trial court erred Accordingly Summary Judgment was proper ARGUMENT THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT AS THE LITIGATION PRIVILEGE IS A BAR TO APPELLANTS CLAIM BASED ON MALICIOUS PROSECUTION The trial court properly ruled that Summary Judgment was warranted in this case The undisputed facts as presented both through Appellees Motion for Summary Judgment and at oral argument on his Motion coupled with the law germane to the issues in this matter established that the litigation privilege absolutely barred both of Edwards causes of action mandating that Summary Judgment be granted Wolfe Foreman So 3d Fla 3d DCA Echevarria McCalla Raymer Barrett Frappier Cole So 2d Fla Levin Middlebrooks Moves Mitchell P.A US Fire Ins Co So 2d Fla In his Brief Edwards wholly disregards the incontrovertible fact that his own pleadings and discovery responses undeniably establish that all of the actions about which he complains in his lawsuit occurred solely during the In addition Appellee argued in his Summary Judgment motion that Appellant could not satisfy all of the elements of a Malicious Prosecution claim including that the suit by Appellee against Appellant resulted in a bona-fide termination in favor of Appellant Appellee took a voluntary dismissal without prejudice which does not constitute a bona-fide termination one of the six essential elements of a malicious prosecution claim See Valdes GAB Robins So 2d Fla 3d DCA Appellant neither addresses nor submits argument as to Appellees assertion so this is not addressed in this Answer Brief Rather Appellee reasserts all argument as delineated in his original Motion for Summary Judgment and relies thereupon course of and related directly to the litigation rendering them absolutely protected by the litigation privilege As unequivocally stated in the decision of Wolfe Foreman So 3d Fla 3d DCA and the Florida Supreme Court cases cited therein Floridas litigation privilege provides to all persons involved in judicial proceedings an absolute privilege from civil liability for actions taken in relation to those proceedings including in an action for abuse of process or malicious prosecution Id The Florida Supreme Court explained the following policy reasons for the litigation privilege In balancing policy considerations we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue so long as the act has some relation to the proceeding Levin Middlebrooks Moves Mitchell P.A US Fire Ins Co So 2d Fla emphasis added Undeniably a malicious prosecution claim is considered other tortious behavior as described by the Florida Supreme Court in Levin Curiously Appellant mischaracterizes the Wolfe courts application of the litigation privilege to a malicious prosecution claim as novel stating in the first paragraph of his Summary of Argument that there is apparently no other decision in the country that reaches the conclusion that the majority did in Wolfe See Brief However in the case of Steinberg Steinberg So 3d Fla 1st DCA after considering the appellants identical challenges to Wolfe the First District Court of Appeal issued a per curiam affirmance of the trial courts application of the litigation privilege to defeat a malicious prosecution claim Appellant was undoubtedly aware of the Steinberg decision as it was Appellants counsel who not only represented the Appellant in Steinberg but also filed his own initial brief from the Steinberg case in the instant case as a Supplementary Submission in Support of Edwards Motion for Reconsideration of the Trial Courts announced intention of granting Summary Judgment and in that submission adopted all legal arguments contained within the attached appellate brief Thus Edwards made the Steinberg argument a part of this case Further this Courts recent opinion in McCullough Kubiak Feb is instructive In McCullough this Court approved the trial courts dismissal of causes of action for both defamation and negligence based upon the litigation privilege Id In so doing this Court examined the litigation privilege and conducted an analysis of the seminal cases upon which Appellee relies in support of his assertion that the trial courts ruling was proper Levin Middlebrooks Mabie Thomas Mayes Mitchell P.A United States Fire Ins Co So 2d Fla and Echevarria McCalla Raymer Barrett Frappier Cole So 2d Fla and correctly recognized and applied the litigation privilege Id This Court continued its analysis distinguishing De/Monico Traynor So 3d Fla a case upon which Appellant relies in support of his argument that the trial court erred This Court emphasized the narrow scenario that existed in De/Monico i.e out of court statements to potential witnesses where neither all parties nor the court were present and stated that it did not exist in McCollough out of court statements to potential witnesses where neither all parties nor the court were present Id at That narrow scenario is likewise absent in the instant case and as such this Court should affirm the trial courts Order Edwardss Brief endeavors to argue that Wolfe conflicts with pre-existing case law on this issue providing a history of the litigation privilege and citing to cases that purportedly state that the litigation privilege is inapposite to a cause of action for malicious prosecution However all of the cases cited were incontrovertibly decided before the Wolfe decision and most of them before Levin and Echevarria See Brief pp Wolfe is directly on point with the facts and law presented in the case at hand and conducts a detailed analysis of the seminal Rivernider Meyer Case Number 4D is another trial court decision applying the litigation privilege to a malicious prosecution claim This decision is on appeal to this Court and is set for Oral Argument on April Florida Supreme Court cases germane to the issues In Wolfe the Third District Court of Appeal affirmed the trial courts order granting a motion for judgment on the pleadings in an abuse of process and malicious prosecution action finding that the litigation privilege applied to and barred both causes of action Id emphasis added The courts focus was on whether the acts alleged occurred during the course of a judicial proceeding and had some relation to the proceeding Id at citing Levin So 2d at Likewise in conducting its analysis of the cause of action for malicious prosecution which just as with the instant case was based on the filing of a complaint the Wolfe court stated that it is guided and restrained by the broad language and application of the privilege articulated by the Florida Supreme Court in Levin and Echevarria In Levin the Florida Supreme Court held that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding Levin So 2d at In Echevarria the Court reiterated its broad application of privilege applies in all causes of action statutory as well as common law Echevarria So 2d at Id at The Wolfe court continued unequivocally stating that It is difficult to imagine any act that would fit more firmly within the parameters of Levin and Echevarria than the actual filing of a complaint The filing of a complaint which initiates the judicial proceedings obviously occurs during the course of a judicial proceeding and relates to the proceeding Because the Florida Supreme Court has clearly and unambiguously stated not once but twice that the litigation privilege applies to all JT X?PB7?B pe ݮtP ꣴ5 7q A 謕?UՋlC č?h oZi?q??Q PwT 3?ރz i ʄ2?r o4?W?wYZ a r??Ɂ?a?"VZ r?C ڰ?t?U??OM PI J?y 2?rΓ SS B?y ґ?C??h m??7Mǹ?L E?:BH 9eE D?h?r?MRĸ?e?N T?IT Fn NNSu JG6?-h E?e/w u?c?aZ0 ښ?b A 1g T?N a I?Lm?BB??l?Sc y?l9 U??ؠ p??E Gu Ǖ?Hd aDB cJ?6 o??ӹ au?V x??k?b S??X l??-?NuN Go?Ʀ Km t?w e9 Z??VG?A??F P?o o?XWVH?z??硣8?Q5y F?NY tȈPU?g I U?D SC?t Xz쥥??ia i 6?ʴsj a lƧ JQ ćn D,?Ϭ pᝤ vm a jЕ?چ!m??Un o??Ғ?d gC?1U tuJV fWd eyǽ H?K wғK IT W?W_ b?S?k I;F K??U Ϲ?8W Es causes of actions and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to 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 we are obligated to conclude that the act complained of here the filing of the complaint is protected by the litigation privilege Wolfe Foreman So 3d Fla 3d DCA emphasis added Additionally the Wolfe decision was recently cited with approval and relied upon in Jackson Attorneys Title Insurance Fund So 3d Fla 3d DCA and American Federated Title Corp Greenberg Trauig P.A So 3d Fla 3d DCA in matters involving the litigation privilege In the instant case the trial court was legally bound by the Third District Court of Appeals decision in Wolfe as the Florida Supreme Court stated unequivocally that a trial court may not overrule or recede from the controlling decision of an appellate court Pardo State So 2d Fla Just as in Wolfe all of the actions upon which Appellant relied in his lawsuit against Appellee occurred during the course of and were directly related to the litigation At the Summary Judgment hearing the following colloquy occurred THE COURT Anything outside of the judicial proceeding as potentially or allegedly obnoxious And as Mr King brought out earlier the allegations being horrifying egregious no matter how you might identify those allegations that were quickly withdrawn anything that youre aware of that went on outside of the judicial process that is being alleged here MR BREWER Not that is being alleged here Your Honor no THE COURT Mr King anything thats being alleged here that goes outside of the broad spectrum that I have read into the record that has its genesis in Echevarria and was quoted by the Wolfe Third District Court of Appeal opinion MR KING Theres nothing alleged Accordingly as explicitly stated in Edwardss own pleadings and discovery responses and as conceded by Edwards counsel at oral argument the events giving rise to Edwardss purported claims against Epstein occurred solely in the course of and were related to the litigation just as occurred in the Wolfe case mandating Summary Judgment Wolfe Foreman So 3d Fla 3d DCA American Nat Title Escrow of Florida Inc Guarantee Title Trust Co So 2d Fla 4th DCA See also Montejo Martin Memorial Medical Center Inc So 2d Fla 4th DCA Fridovich Fridovich So 2d Fla stating that the litigation privilege arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto Moreover the Federal courts in applying Floridas litigation privilege have recognized that it has been expansively interpreted by Florida courts In Microbilt Corporation Chex Systems Inc WL Dec the Bankruptcy Court applying Florida law avowed The rule of absolute immunity extends to the parties judges witnesses and counsel involved and related to the judicial proceedings DelMonico Traynor So.3d Fla Dist Ct App The Florida Supreme Court found that absolute litigation immunity was designed to allow a party to prosecut or defend a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct Echevarria McCalla Raymer Barrett Frappier Cole So.2d Fla see also Levin So.2d at Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding so long as that conduct has some relations to the proceeding To this end Florida courts have expansively interpreted the relates to requirement See Rolex Watch US.A Inc Rainbow Jewelry Inc WL S.D Fla Sept the decision to file a lawsuit clearly relates to a judicial proceeding DelMonico Traynor So.3d Fla privilege applies when statements or actions occur either in front of a judicial officer or in pleading or documents filed with the court or quasi-judicial body Id at See also Jackson BellSouth Telecomms F.3d 11th Cir In its Order on Appellees Motion for Summary Judgment the trial court also correctly determined that the cases cited by Edwards in his opposition to Summary Judgment involved malicious prosecution claims stemming from actions filed by the party themselves sic not counsel In the instant case it was conceded that all filings were done by an attorney in good standing with the Florida Bar rather than by an individual party See Trial Court Order granting Summary Judgment The law is clear that the Wolfe holding protects both the firm that filed suit and the individual plaintiff as it unequivocally states that the Florida Supreme Court has clearly and unambiguously stated not once but twice that the litigation privilege applies to all causes of actions and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to 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 Wolfe Foreman So 3d Fla 3d DCA See also Levin So 2d at the immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties but to judges witnesses and counsel as well In fact in R.H Ciccone Properties Inc JP Morgan Chase Bank NA So 3d Fla 4th DCA this Court correctly recognized that the purpose of the litigation privilege is to free participants in litigation to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct Id at quoting Levin So 2d at Appellant correctly acknowledges that in Echevarria McCalla Raymer Barrett Frappier Cole So 2d Fla the Florida Supreme Court not only reaffirmed the Levin decision but also expanded it to include any act occurring during the course of judicial proceeding regardless of whether the act involves a defamatory statement or other tortious conduct so long as the act has some relation to the proceeding finding that the policy considerations were the perceived necessity for candid and unrestrained communications in judicial proceedings Echevarria So 2d at Brief Echevarria unequivocally recognized that Levin plainly establishes that the rationale behind the immunity afforded to a defamatory statement is equally applicable to other misconduct occurring during the course of a judicial proceeding and that the nature of the underlying dispute simply does not matter Id at The Echevarria court concluded by avowing that the litigation privilege applies across the board to actions in Florida Id at emphasis added Lacking any relevant precedent to refute the broad expansion of the litigation privilege expressly demanded by Echevarria or the application of the litigation privilege to malicious prosecution claims as required by Wolfe Appellant asks this Court to ignore Echevarria and Wolfe urging that application of the litigation privilege to a malicious prosecution claim would completely eviscerate the cause of action for malicious prosecution However that very same argument was flatly rejected in both Wolfe and Steinberg The Wolfe decision as well as the Levin and Echevarria decisions merely hold that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue so long as the act has some relation to the proceeding Levin Middlebrooks Moves Mitchell P.A U.S Fire Ins Co So 2d Fla As a result if a party seeks to bring a cause of action involving acts that neither occurred during nor had relation to the judicial proceeding a cause of action sounding in malicious prosecution may still be viable See Fridovich Fridovich So 2d Fla Olson Johnson So 2d Fla 2d DCA Moreover the Florida Supreme Court judiciously pointed out in Levin that other tortious conduct during litigation is still subject to available remedies even though it may be privileged The Supreme Court held that misconduct by counsel or parties during litigation is left to the discipline of the courts the Bar association and the state Id at emphasis added As such contrary to Appellants assertion there is neither an absolute bar to all malicious prosecution actions nor an evisceration of adequate legal remedies created by the Wolfe case and its progeny Rather these cases only extend a well-established privilege to any act occurring during the course 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 Levin Middlebrooks Moves Mitchell P.A U.S Fire Ins Co So 2d Fla See also Echevarria So 2d at Wolfe Foreman So 3d Fla 3d DCA Consequently based on the undeniable holdings in Wolfe and the cases cited therein Epsteins actions were absolutely protected by the litigation privilege and Summary Judgment was properly granted Additionally Appellant attempts to support his position by referencing the most recent Florida Supreme Court decision applying litigation privilege De/Monico Traynor So 3d Fla which held that statements made outside of the formal judicial process are not protected by the absolute litigation privilege but rather enjoy a qualified privilege Id at The De/Monico Courts ruling however does not limit the Levin and Echevarria rulings Instead it is specific to the extremely confined facts in that matter which were described by the Florida Supreme Court as a narrow scenario referring to out of court statements to potential witnesses where neither both parties nor the court were present Id at Further the Delmonico decision clarified that the existence of judicial oversight in a proceeding is an important reason behind the requirement to apply the privilege to cover acts that occur during the course of and are related to the judicial proceeding stating when weighing whether to apply the absolute privilege to that factual scenario the Court considered that the safeguards arising from the comprehensive control exercised by the trial judge whose action is reviewable on appeal and the availability of other remedies through which the trial court could mitigate the harm Id at citing Fridovich So 2d at Accordingly the DelMonico decision affirmatively recognized a litigation privilege where as in the instant case there is judicial oversight but distinguished the narrow scenario under which the litigation privilege would not be applied Inasmuch as that narrow scenario is wholly absent in the case at bench DelMonico is factually distinguishable and inapposite to the instant case and as such its narrow holding has no bearing on and should not be considered by this Court Similarly Appellant cites Wright Yurko So 2d Fla 5th DCA in support of his assertion that the litigation privilege is inapplicable to a malicious prosecution claim However such reliance thereupon is misplaced First Appellants characterization of Levin as impliedly approving the survival of a malicious prosecution claim in the Wright case is completely unfounded In Levin in support of its holding to apply the litigation privilege to a tortious interference claim the Florida Supreme Court analyzed Wright and cited thereto solely for two propositions that the torts of perjury slander defamation and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable and that 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 and as such other tortious conduct occurring during litigation is equally susceptible to that same discipline Levin Middlebrooks Moves Mitchell P.A US Fire Ins Co So 2d Fla citing Wright So 2d at Accordingly Levin neither held nor cited to Wright for the proposition that the litigation privilege was inapplicable to a malicious prosecution claim Second regardless of what Appellant requests this Court to infer about Wright as a result of its citation in Levin the Florida Supreme Court subsequently made it abundantly clear in Echevarria that the nature of the underlying dispute simply does not matter and mandated that the litigation privilege be broadly applied across the board to actions in Florida Echevarria So 2d at Accordingly no matter how the underlying cause of action may be framed the express guidance from both Levin and Echevarria is that the litigation privilege would be applied to immunize any and all conduct occurring during the course of judicial proceedings so long as it occurred in and had some relation to the proceeding Id at Finally Wright is factually distinguishable because unlike in the instant case Wright included a cause of action against the attorney who filed the alleged malicious prosecution not the represented Plaintiff Wright So 2d at Consequently this Court should give no consideration to this case Likewise Appellants reliance on Graham-Eckes Palm Beach Academy Johnson So 2d Fla 4th DCA is equally as misplaced Graham Eckes is a per curiam affirmance in which the Fourth District Court stated in its single concluding sentence hile 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 Id at As with Wright it is undeniable that Graham-Eckes was decided before Echevarria Levin and Wolfe Further Procacci Zacco So 2d Fla 4th DCA the case upon which the Graham-Eckes court relied in issuing its decision immunized from suit the malicious publication of false statements because they were made during the course of a judicial proceeding As to those false statements this Court avowed Appellants contend that a proper notice of lis pendens based on a recorded instrument and filed pursuant to Florida law is a publication much like a pleading or other statement made in the course of a judicial proceeding and therefore they argue it enjoys the same immunity We agree Id at Appellants reliance on Fridovich Fridovich So 2d Fla is also erroneous as in Fridovich the Florida Supreme Court specifically concluded that only a qualified privilege is applicable when private individuals voluntarily make defamatory statements to the police or the states attorney prior to the institution of criminal charges So 2d at emphasis added See also Olson Johnson So 2d Fla 2d DCA litigation privilege is inapplicable because basis of lawsuit arose out of statements made to a police officer prior to the initiation of a criminal proceeding In stark contrast to both the Fridovich and Olson cases where the conduct occurred prior to any judicial proceedings the actions upon which the Appellant relies as the basis of his malicious prosecution claim in the instant case were made in and were integral to the judicial proceedings rendering Fridovich and Olson inapposite Further Appellants citation to dicta from a footnote in SCI Funeral Services of Florida Inc Henry So 2d Fla 3d DCA is equally inapplicable because it is a Third District Court of Appeal case that did not involve a claim for malicious prosecution and was decided before the Third District Court of Appeal decided Wolfe in which it expressly held that the litigation privilege is applicable to a claim for malicious prosecution Finally Appellant erroneously submits and analyzes cases from other jurisdictions in further support of his assertion that the litigation privilege does not bar a malicious prosecution claim Appellants argument is meritless as it is incontrovertible that reliance upon these cases is misguided other jurisdictions are not controlling upon this Court especially when there is binding Florida precedent directly applicable hereto Additionally the Florida Litigation Privilege is a court created doctrine and as such case law from other jurisdictions is of no import and has no bearing on this matter Moreover binding Florida precedent does not contrary to Appellants assertion bar a malicious prosecution claim but rather affords an absolute privilege to acts that occur within and have a relation to a judicial proceeding Wolfe So 3d at Levin So 2d at Echevarria So 2d at The Florida Supreme Court the First District Court of Appeal and the Third District Court of Appeal have all undeniably extended the litigation privilege to circumstances such as those present in the case at bench where all of the acts upon which a party relies in support of a malicious prosecution claim occur within the litigation Consequently Summary Judgment was proper CONCLUSION In reliance upon the argument submitted above and the case law cited herein Appellee submits that the trial courts Order granting Appellees Motion for Summary Judgment should be affirmed CERTIFICATE OF TYPE SIZE AND STYLE This Brief is typed using Times New Roman point a font which is not proportionately spaced CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy was electronically served to the following on February William King Searcy Denny Scarola Barnhart Shipley P.A Palm Beach Lakes Blvd West Palm Beach FL wbk searcylaw.com Bradley Edwards Farmer Jaffe Weissing Edwards Fistos Lehrman P.L Andrews Ave Ste Ft Lauderdale FL brad pathtojustice.com MarkNurik Law Offices of Mark Nurik Broward Blvd Ste Ft Lauderdale FL marc nuriklaw.com Philip Burlington Burlington Rockenbach P.A Courthouse Commons/Suite Railroad A venue West Palm Beach FL pmb FLAppellateLaw.com kbt FLAppellateLaw.com Fred Haddad Fred Haddad P.A Financial Plaza Ste Ft Lauderdale FL haddadfm aol.com Jack Goldberger Atterbury Goldberger Weiss P.A Australian Ave Ste West Palm Beach FL jgoldberger agwpa.com Chester Brewer Jr Chester Brewer Jr P.A Australian Ave Ste West Palm Beach FL wcblaw aol.com wcbdiane yahoo.com John Beranek JOHN BERANEK Fla Bar No AUSLEY MCMULLEN P.A South Calhoun Street P.O Box zip Tallahassee FL 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