EFTA02775957
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EFTA02775957, U.S. Department of Justice, Epstein Files release (Court Records). Primary source: https://www.justice.gov/epstein/files/Court%20Records/Epstein%20v.%20Rothstein%2C%20No.%2050-2009-CA-040800-XXXX-MB%20%28Fla.%2015th%20Cir.%20Ct.%202009%29/EFTA02775957.pdf. Retrieved via Epstein Files Transparency Act Resources, https://tommycarstensen.com/epstein/data/documents/court/02775/EFTA02775957.html.
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Filing # 13503014 Electronically Filed 05/09/2014 03:54:24 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff, VS. *** FILED: PALM BEACH CO SCOTT ROTHSTEIN, individually, J. L.M., Defendant, individually, and SUPPLEMENTARY SUBMISSIE#al 1UPPORT OF MOTION FORAtF.CONSIDERATION O Counter-Plaintiff, 'hereby submits the attached appellate brief in further support of his pending motion nsideration of the Court's announced intention to grant summary judgment in fav e Counter-Defendant, Jeffrey Epstein. Counter-Plaintiff adopts all legal argum tined within the attached appellate brief, which brief relates directly to the issue o the litigation privilege may properly be applied to bar claims for malicious A4 prosecute EFTA02775957 to all Counsel on the attached list, this +6s adv. Epstein Case No.: 502009CA040800XXXXMBAG Supplementary Submission in Support of Mr Motion for Reconsideration Page 2 of 3 I HEREBY CERTIFY that a true and correct copy of the foregoing was sent 'a E-Serve Ask searcylaw.com and rvice@searcylaw.corn ail(s): _scarolateam@searcylaw.com y Scarola Barnhart & Shipley, P.A. Beach Lakes Boulevard him Beach, Florida 33409 O e: (561) 686-6300 ax: (561) 383-9451 Attorneys for J. EFTA02775958 adv. Epstein Case No.: 502009CA040800)OOOOABAG Supplementary Submission in Support of MI Motion for Reconsideration Page 3 of 3 COUNSEL LIST William Chester Esquire wcblaw ®aol.com; wcbcg@aol.com 250 S Australian Avenue, Suite 1400 West Palm Beach, FL 33401 Phone: (561)-655-4777 Fax: (561)-835-8691 Attorneys for Jeffrey Epstein Jack A. Goldberger, Esquire jgoldberger@agwpa.com; smahoney@agwpa.com Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: (561)-659-8300 Fax: (561)-835-8691 Attorneys for Jeffrey Epstein J. Esquire staffefile@pathtojustice.com Jaffe, Weissing, Edw Lehrman, FL 425 North Andrews Ave Fort Lauderdale, FL 3330 Phone: (954)-524- Fax: (954)-524-2 Fred Had Dee@F Law.com; Fred@F = addadLaw.com Fred Hadd , P.A. One Financial Plaza, Suite 2612 Fort Lauderdale, FL 33394 Phone: (954)-467-6767 Fax: (954)467-3599 Attorneys for Jeffrey Epstein Suite 2 Marc S. Nurik, Esquire marc@nuriklaw.com Law Offices of Marc S. Nuril One E Broward Blvd., Suitt Fort Lauderdale, FL 333 Phone: (954)-745-584 Fax: (954)-745-35 Attorneys for S in Tonja leman, Esquire tonj ad.com; eft jahaddad.com ddad, P.A. E 7th Street, Suite 301 Lauderdale, FL 33301 hone: (954)467-1223 Fax: (954)-337-3716 Attorneys for Jeffrey Epstein EFTA02775959 1N THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT CASE NO. 1D13-5966 MICHAEL L. STEINBERG, Appellant, -vs- MIRIAM F. STEINBERG, Appellee. <c )INITIAL BRIEF O 'Swit LANT On appeal from the Eighth Judicii t In and for Alachua County A Cots +o GAL, HUGHES & 4046 Newberry Road P.O. Box 90028 Gainesville, FL 32607 jross@shrlawfirm.com chughes@shrlawfum.com knorman@shrlawfirm.com awhitbeck@shrlawfirm.com and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 (561) 721-0400 Attorneys for Appellant pmb@FLAppellateLaw.com lab@FLAppellateLaw.com kbt@FLAppellateLaw.com EFTA02775960 TABLE OF CONTENTS TABLE OF AUTHORITIES PREFACE STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT POINT-ON-APPE THE TRIAL COURT SUMMARY JUDG AND APPLYING THE AN ABSOLUTE PROSECUTION CONCLUSION CERTIFICATE OF K/Ict ) CERTIFICA 'ATE SIZE & STYLE Ao GRANTING THE DEFENDANT ON PRIVILEGE AS TO A MALICIOUS PAGE vii 1-4 5 6-30 6-30 31 32 33 ii EFTA02775961 TABLE OF AUTHORITIES CASES PAGE Alamo-Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994) 12 .5 )AST6.\' American Federated Title Corp. v. Greenberg Traurig, P.A., 125 So.2d 309 (Fla. 3d DCA 2013) 4 Clark v. Druckman, 624 S.E.2d 864, 872 (W. Va. 2005) C 22 Crowell v. Herring, 301 S.C. 424, 392 S.E.2d 464, 468 (Ct.App.1990 ''.) ' re v. 1 , Del Monico v. Traynor, 116 So.3d 1205, 1211 (Fla. 2013) Echevarria, McCalla, Ravmer, Barre ra 950 So.2d 380 (Fla. 2007) n Engel v. CBS, Inc, 182 F.3d 124, 128 (2d Fisher v. Payne, 1,31y 113 So.378 (Fla. 1 Fridovich _ i ' %cli 598 Sp. (Fla. 1992) . Dozorc, 312 2d 585, 595 n.20 (Mich. 1981) v. Serio. 496 So.2d 412, 414 (La. App. 1986) Graham-Eckes Palm Beach Academy v. M, 573 So.2d 1007 (Fla. 4th DCA 1991) 22 6, 11 10, 25, 28 13 14, 15, 16, 29 9, 18, 19 13 8, 21 17 ill EFTA02775962 I t v. M, 522 U.S. 118, 133 (1997) Keys v. Chrysler Credit Corp. Hogen v. Valley Hosp., 147 CalApp.3d 119, 195 Cal.Rptr. 5, 7 (1983) 21 Indus. Power & Lighting Corp. v. W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981) 22 v. BellSouth Telecommunications 372 F.3d 1250, 1277 (11th Cir. 2004) N Etclmc 793 So.2d 20, 25 (Fla. 2d DCA 2001) 21 C )O 20 13, 14, 19 303 Md. 397, 494 A.2d 200, 204 (1985) . ., 21 LatAm Investments, LLC v. Holland wt, LLP., 88 So.3d 240 (Fla. 3d DCA 201 J 24, 25 Levin, Middlebroolcs, Mabie v. U.S Fire Ins. Co., 639 So.2d 606 (Fla. 19 Loigman v. Townshi itittun ttee 889 A.2d 42 36 n k (NJ. 2006) Mantia v 190 412, 79 P.3d 404, 408-09 (2003) Mayes & Mitchell, P.A. Mc v. Oko e 282 Neb. 880, 806 N.W.2d 571, 579 (2011) Myers v. Hodges, 44 So.357 (Fla. 1907) North Star Capital Acquisitions. LLC v. M, 611 F.Supp 2d 1324 (M.D. Fla. 2009) 8, 9, 10, 20, 25, 26, 28, 29 22 22 22 7, 8, 9, 15, 16, 25 20 iv EFTA02775963 O1 oi_s_Ja" 961 So.2d 356 (Fla. 2d DCA 2007) 18, 26, 28 Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981) 18 Rainier's Dairies v. Raritan Val. Farms, 19 N.J. 552, 117 A.2d 889, 895 (1955) v. Home Depot U.S.A., Inc., 124 So.3d 415, 416 (Fla. 1st DCA 2013) Rushing v. Bosse, 652 So.2d 869, 875 (Fla. 4th DCA 1995) SCI Funeral Services of Florida, Inc. v. Henn 839 So.2d 702, 706, n.4 (Fla. 3d DCA 2 Sierra Madre Dev.. Inc. v. Via EntradÆow ouses Ass'n, 514 P.2d 503, 507 (Ariz. App. 1 Simms v. Seaman, 69 A.3d 880, 890 (Co Finkelstein. Thomps • & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 346 Br S la. 1926) 2001) tate & Investment Co. v. The'Nt f Mayer v. Lax, Inc., 998 NE 2d. 238, 250 (Ind. App. 2013) Tidwell v. Witherspoon, 21 Fla. 359 (Fla. 1885) Willis & Linnen Co., L.P.A. v. Linnen, 837 N.E.2d 1263, 1265-66 (Ohio App. 9 Dist. 2005) 19 20, 21, 26 22 22 22 12, 13 21,24 12 22 v EFTA02775964 Wolfe v.~ 128 So.3d 67 (Fla. 3d DCA 2013) Passim v. Yurko 446 So.2d 1162 (Fla. 5th DCA 1984) 16, 17, 20, 26 STATUTES §768.28(9Xa), Fla. Stat. Restatement Second Torts §587 OTHER AUTHORITIES Prosser and Keeton on the Law of Torts 20 22 13 vi EFTA02775965 PREFACE This is an appeal from a Final Judgment of the Circuit Court following a non jury trial. The parties are referred to by their proper names, as they appeared below, or as otherwise designated. The following designations will be used: Asa'lc(R) — Record-on-Appeal CO S 4 C) vii EFTA02775966 STATEMENT OF THE CASE AND FACTS Plaintiff, Michael L. Steinberg (hereafter "Michael") filed a Complaint against his former wife, Miriam F. Steinberg (hereafter "Miriam"), initially alleging two counts of malicious prosecution for claims she alleged against him in 4_ their dissolution action (R1:1-9). The operative complaint for pu 2 sei of this Aso vi appeal is the Amended Complaint which specifically allege t iriam had initiated a civil action against Michael by filing a __./ unter-Petition in the dissolution action which included as Count In a cla interspousal tort which was later amended and redesignated a "Conl‘gJDomestic Violence Claim" (R1:147-48, 169, 174). 4 In the "Continuing Domest io ce Claim" Miriam alleged that Michael had a "long term history of iv ehavior toward Ms. Steinberg and their son when he was a young chi that he had committed various assaults, batteries, sexual assaults and tteries; and had engaged in verbally abusive behavior, harassment ther improper conduct (R1:148, 175). In that count Miriam claime a had suffered various injuries as a result of Michael's alleged miscon ct and that she would need future medical, psychological, and other treatment in therapy as a result (R1:148, 175-76). Miriam also sought a domestic violence injunction against Michael, without notice to him, based on those allegations (R1:148, 171). EFTA02775967 In his malicious prosecution claim (Count I of his Amended Complaint) Michael stated that the factual allegations underlying Miriam's Continuing Domestic Violence Claims were false and that she knew them to be false (R1:147- 52). The Amended Complaint alleged that Miriam's claim resulted in a bona fide termination in Michael's favor (R1:151). Specifically, in the Final nt of Dissolution of Marriage the trial court determined that them sufficient evidence to demonstrate that "continuing domestic violenc ' occurred and that the husband "shall go hence without day" as to Count III (Iariam , s Counter-Petition \ <9 (R1:151). Ac414\Michael also alleged in Count I o ended Complaint that Miriam had filed the Continuing Domestic Vi nce laim without probable cause since she . knew that the facts alleged t e re false (R1:151). Michael also specifically alleged that Miriam acte&with malice because she lacked reasonable cause to bring the claim based ! lite r firsthand knowledge of its falsity, and that it was done with great e ce to his rights and in an effort to gain an advantage in the dissoluti \ ation (R1:151-52). Miriam responded to the Amended Complaint with a Motion to Dismiss (R3:461-72). The trial court entered an order denying that motion (R3:500-01). Miriam then filed her Answer to the Amended Complaint denying any wrongful 2 EFTA02775968 conduct and raising numerous affirmative defenses including the litigation privilege (R528-45) Subsequently, Miriam filed a Motion for Partial Summary Judgment as to Counts II, III and IV of the Amended Complaint arguing, inter alia, litigation privilege (R3:578-600). However, that motion did not seek a sum njtidgment tr - IC)as to Count I, the malicious prosecution claim, and did not alle e litigation privilege applied to that cause of action. After briefing and argument, the trial coined an Order granting Miriam's Motion for Partial Summary Jud u T Counts I, II, III and IV, concluding that the litigation of privil lied to them (R9:1642-44). That Order cited the (then) recent decis. of e Third District, Wolfe v. 128 So.3d 67 (Fla. 3d DCA 201 held that the litigation privilege barred an action for malicious pr (R9:1642). However, since Miriam had not moved for summary judgment on Count I, the order did not address or dispose of that count. r, Miriam filed a Motion for Final Summary Judgment as to the e k. malicio prosecution claim relying on Wolfe, supra, and arguing for the first time that litigation privilege was an absolute bar to a malicious prosecution case (R9:1678-92). She later filed a Notice of Supplemental Authority in support of that motion attaching the mandate in Wolfe, and citing a subsequent Third DCA 3 EFTA02775969 decision which applied Wolfe, American Federated Title Corp. v. Greenberg Traurig, P.A., 125 So.2d 309 (Fla. 3d DCA 2013) (R9:1700-10). Michael filed a Motion for Leave to file a Response to Miriam's Notice of Supplemental Authority, with a Response noting cases from other district urts in Florida that conflict with Wolfe (R9:1711-17). Michael argued is no absolute immunity based on litigation privilege as to the malicious prosecution (R9:1713-14). A hearing was held on Miriam's Motion for S Judgment as to Count I, and later the court entered an order granti I n (R9:1718-20). A Final Judgment was subsequently entered el has filed this appeal seeking review of it (R9:1745-49). As tai 6) 4 EFTA02775970 SUMMARY OF ARGUMENT The trial court erred in applying the Third District's opinion in Wolfe to justify summary judgment against the Plaintiff in this malicious prosecution action. There is ample authority in Florida that litigation privilege is not an absolute bar to a malicious prosecution claim, and the Wolfe decision is berration Thit,Court has not specifically addressed this issue, but should follow the 1 the other district courts in Florida, other than the Third District, and old that the litigation privilege does not bar a claim for malicious prose at holding would be consistent with the common law, prior decisio orida Supreme Court, and the overwhelming weight of authority the country. ve, this Court should reverse the Therefore, for the reasons eAocr ay Summary Judgment entered proceedings. rc S rcuit Court and remand the case for further 5 EFTA02775971 ARGUMENT POINT -ON-APPEAL THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT AND APPLYING THE LITIGATION PRIVILEGE AS AN ABSOLUTE BAR TO A MALICIOUS A PROSECUTION CLAIM. O ASStandard of Review Orders granting summary judgment are reviewe deter de novo standard of review. a v. Home Depot U.S.A., Inc., 4 o. 415, 416 (Fla. 1st DCA 2013). Additional)y, where the material f ot disputed, the determination whether a privilege arises is a ques which is reviewed de novo. Del Monico v. Traynor, 116 So.3d 1, .iI I (Fla. 2013). Argument The trial cou d in granting Summary Judgment in favor of Miriam based on a of the litigation privilege. The trial court relied primarily on yata kthe Th. t ct's decision in Wolfe v. 128 So.3d 67 (Fla. 3d DCA 2013),\ehich held that litigation privilege barred malicious prosecution claims. However, Wolfe conflicts with decisions from other district courts in Florida, as well as overwhelming authority from other jurisdictions, and is inconsistent with the development of the litigation privilege and malicious prosecution in the 6 EFTA02775972 common law. It does not appear any other jurisdiction in the United States applies an absolute litigation privilege to malicious prosecution claims; in fact, that cause of action has coexisted in the common law for hundreds of years without conflict. As of the filing of this brief, this Court has not directly addressed this particular issue. StyHowever, consideration of the overwhelming weight o and the pertinent policy considerations should persuade this Court at tJ e Wolfe decision was wrongly decided, and that the litigation privile veloped by the Florida Supreme Court does not justify the result in herefore, this Court should 4 reverse the Summary Judgment. The Litigation Privilege in Floria.v The Florida Supre first addressed the scope and application of the litigation privilege i ers v. Hod es, 44 So.357 (Fla. 1907). In that case, Hodges had filed suit ainst a rporation in which Myers was the president. Hodges' Bill of Equity ned statements relating to Myers personally, including that he was t shonorable, unscrupulous and conscienceless man;" ... and that he had stated he would do "everything in his power to beat [Hodges) out of the money owing to him, short of swearing to a lie" (44 So. at 358). While that language was stricken from the Bill of Equity by the trial court, Myers sued Hodges after the conclusion of that suit for libel based on those slanderous statements. The trial 7 EFTA02775973 court ultimately directed a verdict for Hodges on the libel claim, and the Florida Supreme Court affirmed, based on what is now termed the litigation privilege.2 In Myers, the Supreme Court first addressed the common law in England on this issue, but rejected its rule of absolute privilege as to any statements ade in judicial proceedings. Instead the Court adopted the rule developed in e rican common law that an absolute privilege would only apply to sta hich were made in judicial proceedings relevant to the subject mat r of) the actions. The Court stated (44 So. at 361): We think the ends of justic effectually accomplished by not extendi P liege so far as to make it an absolute e from liability for defamatory words who ntirely outside of, and having no connection , matter of inquiry. ± The Court in Myers did no er, that much latitude should be granted in determining whether stat en are pertinent to the proceedings; and that if the statements were no ent, a qualified privilege arose that could only be overcome expre ing that the defendant made the challenged statements with 2 The Myers decision did not use the term "litigation privilege." That phrase appeared in the certified question from the Eleventh Circuit Court of Appeals in Levin Middlebrooks, Mabie. a Mayes and Mitchell. P.A. v. United State Fire Ins. Co 639 So.2d 606 (Fla. 1994). Some jurisdictions use different terminology such as "'udicial privilege" or just refer to it generally as an absolute privilege, e.s. v. erio 496 So.2d 412, 414 (La. App. 1986). Appellant will refer to it as the "litigation privilege" throughout this brief. 8 EFTA02775974 The policy consideration noted by the Myer's decision included that it was in the interest of the public that "great freedom should be allowed in complaints and allegations" in court proceedings (44 So. at 361). The Court also noted that trial courts could protect parties by expunging irrelevant defamatory all gations, and utilize its contempt power against the guilty party. Id. The ision remains the seminal case on the litigation privilege in Florida. trates that the litigation privilege arises from the common law, and th t it i justified only by the policy considerations which underly it. The first significant clarification of ion privilege after Mvers occurred in Fridovich v. Fridovich, 59 465 (Fla. 1992). In that case, the Court held that defamatory state is tartly made by a private individual to police or prosecuting autho ' e to the institution of criminal charges were Gi nnot absolutely privileged, in y entitled to a qualified privilege which could be ‘ft raovercome by a show' t the statements were made with express malice. Subs , in Levin, Middlebrooks, Mabie, =, Mayes and Mitch . United State Fire Ins. Co. 639 So.2d 606 (Fla. 1994), the Court held the absolute immunity would be afforded to an act involving tortious interference with the business relationship that occurred during the course of judicial proceeding, so long as the act had some relevance to that proceeding. In that case, the Levin firm represented a client in litigation against an insurance 9 EFTA02775975 company. The insurance company subpoenaed one of that firm's attorneys to be a witness at trial, resulting in the disqualification of that firm as counsel for the plaintiff However, the insurance company did not call that attorney as a witness at the trial. After the case was concluded adverse to the insurance company, the law firm sued the insurance company for intentional interference wi mess k relationship for issuing the subpoena and obtaining disqualificat ii law firm. The Court in Levin held: In balancing policy considerations, we d at absolute immunity must be afforded to any ct ng during the court of a judicial proceedin ess of whether the act involves a defamatory or other tortious behavior such as the alleg duct at issue, so long as the act has some r ion the proceeding. The rationale behind the afforded to defamatory statements is equ 'cable to other misconduct occurring durin of a judicial proceeding. Just as participan ation must be free to engage in unhindered unication, so too must those partici its be free to use their best judgment in prosecu defending a lawsuit without fear of having t fen heir actions in a subsequent civil action for duct. arria, McCalla, Ravmer, & Frappier v. M, 950 So.2d 380 (Fla. 20b'/), the lower court held that the litigation privilege, being a creature of the common law, did not apply in cases where the cause of action was created by statute. The Florida Supreme Court quashed that decision ruling that the litigation privilege applies in judicial proceedings, whether the underlying case involved a 10 EFTA02775976 common law tort or a statutory cause of action. The Court held that "the nature of the underlying dispute simply does not matter" since the policy considerations justifying the privilege still applies, which is the "perceived necessity for candid and unrestrained communications in judicial proceedings" (950 So.2d at 384). Recently, in Delmonico v. Trayner, 116 So.3d 205 (Fla. 20 ourt held that the litigation privilege did not grant absolute immuni attorney's conduct in making defamatory, ex parte, out of court ate ents to potential nonparty witnesses, even though that conduct aros is representation of his sclient in litigation. In discussing the litigatioii( r e, the Court in Delmonico 4 stated: This Court's recogn e privilege derived from a balancing of two c interests - the public interest in allowing liti counsel to freely and zealously advocate for it ses in court versus protecting the rights of ind is, including the right of an individual to mai in his or her reputation and not be subjected to slander dv clicious conduct. Delmonico concluded that since judicial oversight and other prote iAe s plicable in judicial proceedings were unavailable, or far less effectiv , for conduct occurring during an out of court informal investigation, that conduct was only entitled to a qualified privilege. That qualified privilege would apply if the statements at issue were relevant to the subject matter of the lawsuit; 11 EFTA02775977 however, it could be overcome if the plaintiff proved that they were made with express malice (116 So.3d at 12-18-19). Malicious Prosecution Claims in Florida While initially acknowledged in Tidwell v. Witherspoon, 21 Fla 9 (Fla. 1885), the tort of malicious prosecution was first discussed in-depthQthe lorida 109 So. 623 (Fla. 1926). There, the Court described malici' r ion as "a very ancient action" and defined its elements as folio . at 626): cut Supreme Court in Bros. Real Estate & Investment C .c An action for maliciously pu w in motion lies in all cases where there is a nce of the following elements; 1) The com em t or continuance of an original criminal or c al proceeding. 2) Its legal causation by the -defendant against plaintiff who was defendant e original proceedings. 3) Its bona fide termina or of the present plaintiff. 4) The absence of p ba e cause for such proceeding. 5) The presenc of ice therein. 6) Damage conforming to legal sta resulting to plaintiff. If any one of these el ents lacking, the result is fatal to the action. Those ele are still the requirements for a prima facie malicious prosecution acti amo-Rent-A-Car Inc. v. Mancusi 632 So.2d 1352, 1355 (Fla. 1994). As stated in Bros, supra, malicious prosecution was an action ex delicto at the common law (109 So. at 626). Its genesis was English common law which, despite providing for the losing party to pay fees and costs to the prevailing party, nonetheless recognized a need for a remedy when special damages beyond 12 EFTA02775978 those expenses had been suffered by the prevailing party, see Engel v. CBS. Inc, 182 F.3d 124, 128 (2d Cir. 1999) (and cases cited therein)? Based on the English common law, malicious prosecution was subsequently recognized as a cause of action in American courts, m i: = Bros., su r with the relevant policy considerations described by Prosser, as follows: 7'The law supports the use of litigation as a social for resolving disputes, and it encourages hon to bring criminals to justice. Consequently t ac user must be given a large degree of fr make mistakes and misjudgments without bjected to liability. On the other hand, no on h permitted to subject a fellow citizen to pros4t or an improper purpose and without an hon that the accused may be found guilty. Prosser and Keeton on the Law of p. 871 (5th Ed. 1984). The competing poli eration underlying malicious prosecution claims were addressed in lements of the prima facie case. The individual's interest in freedomtIr unjustifiable litigation and the social interest in not chilling ac e courts were balanced by the onerous requirement that the plaint an absence of probable cause and express malice. Id. As noted by Justice calla in Kalina 522 U.S. 118, 133 (1997) (Scalia, J., concurring) "[T]here was a kind of qualified immunity built into the elements of 3 For a brief summary of the developments in English law from the successful claimant's obligation to pay costs and fees to recognition of the malicious prosecution action dating back to the Norman conquest, see v. Dozorc. 312 NW 2d 585, 595 n.20 (Mich. 1981). Just a thought. 13 EFTA02775979 the tort." Justice Scalia addressed that balance in the context of the Kalina case as follows: At common law, therefore, Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution. The tortious act in such a case would have been her decision to bring criminal char es MI, and liability woul attach only if could prove that the prosecut was malicious, without probable cause, and ults unsuccessful. Kalina's false statements as a support of the warrant application would not been an independent actionable tort (although have been evidence of malice or initiation malicious prosecution suit), because of th s e privilege protecting such testimony from s amation. The Litigation Privilege is Not App1' alicious Prosecution Claims in Florida Prior to Wolfe In Fisher v. Payne, 113 (Fla. 1927), the Florida Supreme Court addressed a case in whiclythe ation privilege was asserted in the context of a malicious prosecuti action. There, Fisher and her husband filed an action for libel, false I tut) nt, and malicious prosecution against three defendants arising o t o the institution of a lunacy inquisition against her. The three def ere the three members of the examining committee appointed by the court to assess Fisher, and they concluded that she was insane. The trial court then adjudged Fisher to be insane and had her transported to a state hospital for maintenance and restraint. Approximately a year later, the circuit court rendered a decree restoring Fisher to judicial sanity. 14 EFTA02775980 After she was restored to sanity, Fisher and her husband filed suit against the three members of the examining committee. The trial court entered judgment for the defendants on all three counts and the plaintiffs appealed. In Fisher, the Florida Supreme Court first addressed the plaintiffs' libel claim, and in short order determined that it was banned by the litistapn vilege adopted in Myers, supra. However, the Court in Fisher did not apply that privilege to the malicious prosecution claim, but rather evaluabid the (common law) pleadings and determined them insufficient to de e a prima facie case.' Specifically, the Court found the declarati of allege that any of the defendants had instituted the lunacy p ee gs against Fisher. The plaintiffs' pleading acknowledged that the en nts were appointed to the examining committee by the court aft tion had been initiated, and there was no allegation that the defend ad anything to do with the initiation of the action. As a result, that requirZtrelement of the tort had not been alleged. Id. 113 So. at 381. , the Court also noted that the plaintiffs had failed to allege the essentia element that the lunacy proceedings were commenced without probable cause. Id. If the Court in Fisher believed that the litigation privilege established in Myers applied as a bar to the malicious prosecution claim, there would have been The Court in Fisher also disposed of the false imprisonment claim on the ground that it was not adequately plead (113 So. at 380). 15 EFTA02775981 no need to address whether or not plaintiffs' allegations sufficiently stated the elements of that tort. Obviously, consistent with English common law, the Florida Supreme Court recognized that the litigation privilege and the cause of action for malicious prosecution should coexist without conflict. Subse•uent to Fisher and prior to Wolfe, there were numerous i court decisions ida addressing whether the litigation privilege claim for maliciou• ution. C) v. Yurko, 446 So.2d 1162 (Fla. 5th 984), the Fifth District consolidated two actions in which a doctor ople who had initiated or participated in an unsuccessful medical ice action against him. In one suit, he sued Yurko, the attorney t re sented the plaintiffs in the medical malpractice action; and in suit he sued the plaintiffs (Dormans) and Barnett a, the expert the s who testified for them. alleged claims for perjury, libel, slandedEfamation and malicious prosecution. The trial court had dismissed th co plaint against the Dormans and a, and granted summary judgmen in_ favor of Yurko. appealed both rulings and they were consolidated on appeal. In a, the Fifth District first addressed the dismissal of the claims against the Dormans and The court affirmed the dismissal of the claims for perjury, libel, slander, defamation and conspiracy to commit those torts based on 16 EFTA02775982 the litigation privilege (446 So.2d at 1164-65). The court then stated (446 So.2d at 1165): The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution. [Footnote deleted.] The Fifth District proceeded to analyze complaint and dete at it sufficiently alleged the elements of malicious prosecution clai concluded that the dismissal order should be reversed.5 Thus, whi the C Fifth District in concluded that the litigation privilege barre other claim in complaint against the Dorm= and = it d\ • n the malicious prosecution claim. In Graham-Eckes Palm Be (S )" A my v. 573 So.2d 1007 (Fla. 4th DCA 1991), the court final judgment denying relief on claims for intentional inference with co tract for sale of land and slander of title. The court stated (573 So.2d at it*: contends that the absolute privilege normally orded to pleadings should not apply where the plaint is wholly frivolous and filed to interfere with the performance of a contract for the sale of property. While appellant's argument is persuasive, we hold that its proper cause of action would have been one As to stSainst Yurko, the Fifth District upheld the summary judgment against on the basis that Yurko had filed an affidavit demonstrating probable cause for the filing of the suit and the doctor had not filed any counter affidavits or other sworn testimony in opposition thereto (446 So.2d at 1165-67). 17 EFTA02775983 for malicious prosecution and affirm on the authority of Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981) Thus, the Fourth District ruled that the litigation privilege applied to the slander of title and interference with a contract claims, but that the privilege would not have barred a malicious prosecution claim. In Olson v. 961 So.2d 356 (Fla. 2d DCA 2007), the Second District also concluded that a malicious prosecution action was not b the litigation privilege. In that case, was in a custody battl ithlthian named Olson, and she and two of her friends signed affidavits it at he was stalking her. Those affidavits provided the basis for a charge to be brought against Olson. However, Olson was acquitte sued the three women for malicious prosecution. The trial court gr ary judgment to M, and the Second District reversed, concludint i ?alia, that Olson's claim was not barred by the litigation privilege. Tie Second District, in an opinion authorized by then-Judge Canady, state reliance on Fridovich is unwarranted. In ÷ ing on Fridovich, EMIconfuses the law of defamation -with which Fridovich deals-with the law of malicious prosecution-which is at issue in the instant case. Olson has made no claim based on defamation, and the fact that defamatory statements may have been made in the course of the conduct which Olson alleges as the basis for his claim does not transform that claim into a defamation claim that is subject to an assertion of the absolute privilege or qualified privilege discussed in Fridovich. 18 EFTA02775984 There is no equivalent ege available to a complaining witness such as who is named as a defendant in a malicious prosecution action. Such a defendant must defend against a malicious prosecution claim by disputing an element or elements of the cause of action alleged or by raising an applicable affirmative defense. AIi ;That rationale was consistent with prior Florida law and essential! cics ustice Scalia's analysis of the common law in Kalina, quoted suar 0tt s 0Thus, prior to Wolfe the Fifth, Fourth and Secon is had ruled that the litigation privilege did not apply to malicious pro c i aims. There are other references in F ANA trict court decisions which demonstrate that prior to Wolfe the li do vilege was not considered to be an absolute bar to a malicious pro ction. For example, in Rushing v. Bosse, 652 So.2d 869, 875 (Fla. 995), the court noted that the complaint stated, inter alia, a cause of ction r malicious prosecution on behalf of a child who was subject to an ptio roceeding. The trial court had dismissed that count as to two atto h had been named as defendants. A4F ourth District, in an opinion written by then-Judge Pariente, reversed that ruling, stating (65 So.2d at 875): The fact that Chilton and Bosse are attorneys does not immunize them from a malicious prosecution action if the evidence establishes that they instituted a claim which a reasonable lawyer would not regard as tenable or unreasonably neglected to investigate the facts and law in 19 EFTA02775985 making a determination to proceed, provided that as long as the other elements of a malicious prosecution are also proven. Additionally, in SCI Funeral Services of Florida. Inc. v. Henry 839 So.2d 702, 706, n.4 (Fla. 3d DCA 2002), the Third District stated, albeit in dicta: A,As the Levin court cited = v. Yurko, 446 So.2 1162 (Fla. 5th DCA 1984), with approval, presuma the cause of action for malicious prosecution conti exist and would not be barred by the litigation • =, 446 So.2d at 1165. See also, v. Sackett 793 So.2d 20, 25 (F A 2001) (HRS case worker was not entitled to absolute immu i r the common law from malicious prosecution action, although s ntitled to the qualified privilege in §768.28(9)(a), Fla. Stat.). Finally, in North Star Acquisitions, LLC v. M, 611 F.Supp 2d 1324 (M.D. Fla. 2009), fe eral district court addressed whether the litigation 'privilege protected Id y misleading or deceptive documents which had been served on d n with the complaint at the initiation of the lawsuit. The district judge concluded that the Florida Supreme Court would not extend the litigatio privilege to that conduct, and in his discussions stated (611 F.Supp. 2d. at 1330): The privilege applies to conduct that occurs during settlement negotiation. See, v. BellSouth Telecommunications, 372 F.3d 1250, 1277 (11th Cir. 2004). However, not every event bearing any relation to 20 EFTA02775986 litigation is protected by the privilege because, as noted by counterclaim plaintiffs, "if the litigation privilege applied to all actions preliminary to or during judicial proceedings, an abuse of process claim would never exist, nor would a claim for malicious prosecution." See SCI Funeral Services of Fla.. Inc. v. Henry, 839 So.2d 702, 706 n.4 (Fla. 3rd DCA 2002) (noting that the Florida Supreme Court has implied that malicious prosecution claims have survived the expansion of the litigatio As y privilege). [Footnote deleted.] Prior to Wolfe, there was no case law in Florida holding that O t ion privilege t a malicious prosecution claim. Other Jurisdictions -S CICP)C The pre-Wolfe Florida case 1 dis sed above uniformly held that the litigation privilege did not bar for malicious prosecution. That case law was consistent with the o g weight of authority throughout the country. As recently noted b the court in The Estate of Mayer v. Lax. Inc., 998 NE 2d. 238, 250 (Ind. p. 2O113): t iv ere absolute [litigation] privilege bars an action for t number of other jurisdictions also hold that even + defamation based on statements made during a judicial proceeding, it does not bar an action for malicious prosecution. See Ho en v. Valle Hos . 147 Cal.App.3d 119, 195 Cal.Rptr. 5, 7 (1983); v. Serio, 496 So.2d 412, 414-15 (La.Ct.App.1986), writ denied; Kevs v. Chrysler Credit Corp., 303 Md. 397, 494 A.2d 200, 204 (1985); McKinney v. Okoye, 282 Neb. 880, 806 N.W.2d 571, 579 (2011); Rainier's Dairies v. Raritan Val. Farms, 19 N.J. 552, 117 A.2d 889, 895 21 EFTA02775987 (1955); Mantia v. Hanson, 190 Or.App. 412, 79 P.3d 404, 408-09 (2003); Crowell v. Herring, 301 S.C. 424, 392 S.E.2d 464, 468 (Ct.App.1990). We see no reason to depart from this wealth of authority and, thus, hold that the absolute privilege for communications made during a judicial proceeding does not bar Lax and Lasco's cause of action for malicious prosecution arising from such communications. 1Those are not the only jurisdictions which hold that the litigation pf e does not , bar a malicious prosecution claim. See Indus. Power & Corp. v. W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981), Sie Dev.. Inc. v. Via Entrada Townhouses Ass'n, 514 P.2d 503, 5 App. 1973), Simms v. Seaman 69 A.3d 880, 890 (Conn. 2013) Spin, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 346 (D.C. 2001), Loigman v. Township Committee, 889 A.2 6 n.4 (N.J. 2006), Willis & Linnen Co., L.P.A. v. Linnen, 837 N. 1265-66 (Ohio App. 9 Dist. 2005), and Clark v. Druckman, 624 S. 2d 8 872 (W. Va. 2005). The ge l ac ptance of that holding is further demonitrated by the codificati litigation privilege in Restatement (Second) Torts §587, which desc1A4 e privilege, consistent with Florida law, as follows: A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he 22 EFTA02775988 participates, if the matter has some relation to the proceeding. However, in Comment(a) 2d. §587, the Restatement 2d. Torts specifically notes that the privilege does not eliminate a claim from malicious prosecution: The privilege stated in this Section is based upon the public interest in according to all men the utmos freedom of access to the courts of justice for settlement of their private disputes. Like the privi an attorney, it is absolute. It protects a party to litigation or a private prosecutor in a criminal tion from liability for defamation irrespective rpose in publishing the defamatory matter, elief in its truth or even his knowledge of its ne against whom civil or criminal proc initiated may recover in an action for the r initiation of the proceedings, under the s in §§ 674 to 680, if the proceedings have mi S in his favor and were initiated without u able cause and for an improper purpos The Wolfe Decision Despite the le t y hi o of the coexistence of the litigation privilege and or ry the cause of on malicious prosecution, and the extensive case law cited above, th • istrict in Wolfe held that the absolute immunity afforded by the liti vilege barred an action for malicious prosecution. In Wolfe, a malicious prosecution claim6 was brought against Florida attorneys who had been retained by their client's New York counsel to file a 6 The plaintiffs in Wolfe also sued the defendants for abuse of process, and the Third District held that the litigation privilege baited that claim, based on its earlier 23 EFTA02775989 complaint in federal court in Miami. The complaint between the same parties addressed a dispute that had been the subject of prior litigation and a settlement agreement. However, neither the client nor his New York counsel fully informed the Miami lawyers of that prior litigation and the settlement agreement. After filing the complaint and being provided with those materials, the M wyers immediately notified the client that they could not ethically pu laims and they withdrew with court authorization. Thereafter, the co mplaint was dismissed and a final judgment in favor of the defendants was After the conclusion of the federal liti o t plaintiffs in Wolfe filed a malicious prosecution action against the t lawyers. The trial court granted a judgment on the pleadings, concl t the litigation privilege granted them absolute immunity, and the T ict affirmed that determination. In Wolfe, the strict relied on its prior decision in LatAm Investments, supra, her authority to hold that the litigation privilege applied to the abuse of process claim. With respect to the malicious prosecution claim, the decision in LatAm Investments, LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011). Abuse of process is not a claim in the case sub iudice. It should be noted that in Estate of Mayer, supra, after noting the "vast number" of cases rejecting the application of the litigation privilege to malicious prosecution claims stated (998 N.E.2d at 250): The case law regarding absolute privilege and abuse of process claims is not as overwhelmingly uniform. 24 EFTA02775990 Third District acknowledged that "the law is not as clear" whether the privilege barred that claim. Wolfe, 128 So.3d at 68. In its legal analysis, the Third District noted the establishment of the litigation privilege in Myers, supra, and quoted language from Levin, su r and Echevarria, supra, that absolute immunity must be afford to "any ring during the course of a judicial proceeding" (128 So.3d at 69). District concluded that the filing of a complaint was clearly an ac at ould fall within the parameters of that language and, therefore, it m ubject to the litigation privilege. The opinion also notes that while onduct such as malicious prosecution may be protected under tion privilege, there was still a remedy available in "the discipline the urts, the bar association, and the state" (128 So.3d at 71, quoting 639 So.2d at 608-09). In Wolfe. Judge Sh rd fled a specifically concurring opinion in which he rjoined in the affa e but for different reasons. Judge Sheperd concluded that the malicio ution claim was fatally defective because two essential elemen issing-malice and absence of probable cause (128 So.3d at 71-72). It important to note what the majority opinion in Wolfe did not address. The majority did not analyze, or even mention, the fact that the litigation privilege and malicious prosecution claims had coexisted in the common law for hundreds of years without any conflict. Additionally, the majority did not address any of the 25 EFTA02775991 Florida case law discussed supra, in which the litigation privilege was not applied to malicious prosecution claims. In fact, the majority in Wolfe did not even discuss the dicta in its prior decision in SCI Funeral, supra, to the effect that the Supreme Court's citation (with approval) to = supra, in the Levin decision indicated that a malicious prosecution claim would not be barred by the litig (839 So.2d at 706, n.4). The only Florida case discussed above that the majoy addressed in Wolfe, was the Second District's decision in Olson, supra. jority opinion in Wolfe relied upon that case for the proposition that n of the litigation privilege would not eliminate the malicious prose o use of action. The majority stated that the tort would still apply to ac co tted prior to the filing of the complaint, if they qualified as a legal Putting aside that extrem ion on malicious prosecution claims, that analysis ignores that Olson the claim of absolute privilege on the basis that it confused a defamation with the law of malicious prosecution (961 So.2d t) e initiation of the underlying proceedings. at 360- . s, Olson is not support for the majority decision in Wolfe. ally, it is also significant that the majority in Wolfe did not discuss the law of any other jurisdiction, nor cite any recognized treatise for the proposition that the litigation privilege applied to malicious prosecution claims. There does not appear to be any such authority and, it is respectfully submitted, that is strong ilege 26 EFTA02775992 support for the conclusion that Wolfe was erroneously decided and should not be followed by this Court. This Court Should Not Follow Wolfe This Court has not directly addressed the issue involved in this case ,whether the litigation privilege is an absolute bar to an action for malicio> rosecution. This Court should follow the overwhelming weight of au 1 Jh Florida and throughout the country, which have upheld the a> nt se of action for malicious prosecution in this context. ASAn analysis of the Wolfe opinion "' nAT a es its weaknesses. There, the majority opinion did not address the aw history of the litigation privilege and the cause of action for malj23gefefxosecution. The majority of Wolfe did not / cite any authority on point froni any jurisdiction that supported its holding. Li Moreover, while th olicy considerations underlying the litigation privilege and l ot the malicious rosec 'on cause of action are related, the balance struck by the courts th they common law has been carefully evaluated and established, not explain why these policy considerations have now changed so drastically as to justify the elimination of the cause of action for the malicious prosecution. While the majority in Wolfe suggests that the tort of malicious prosecution would still exist under its rationale, it limited it to those (rare) circumstances where 27 EFTA02775993 a party or parties who motivated, but did not actually file, the vexatious action might be held liable. However, under Wolfe's reasoning, the person or entity who actually filed the vexatious action would have absolute immunity because the filing of the complaint was an act done in a judicial proceeding. There is no policy justification for that distinction and, while the Wolfe majority relj Ison, supra, that was not the rationale of the Second District's decisio The Wolfe majority opinion is based almost entirely clause from the Levin decision (which was subsequently quoted in he is to the effect that any act occurring during a judicial proceedin utely privileged. However, 44cneither Levin nor Echevarria addressed us prosecution claim in which the initiation of the vexatious litig • n i he wrong itself. Neither Levin nor Echevarria involved a situa e the underlying litigation was maliciously initiated, and neither opin vides a basis to conclude that the Florida Supreme Court would choose to'ttev late from the overwhelming weight of authority in this A country on e. The Florida Supreme Court has recognized the common law origins An the litigation privilege and the malicious prosecution cause of action; \legal principles which have coexisted without conflict for hundreds of years. In fact, the Supreme Court applied them, without conflict, in Fisher v. Payne, supra. 28 EFTA02775994 While the Supreme Court has obviously accepted the argument that potentially tortious conduct in litigation (which presumably was not filed maliciously) is entitled to absolute immunity, that is not the same as the conclusion that the malicious initiation of litigation should also be immune. As noted in an early edition of Prosser's treatise: ,COAA' There is no policy in favor of vexatious suits kno N groundless, which are a real and often a serio and the heavy burden of proof upon the p to establish both lack of probable cause roper purpose, should afford sufficient prate the bona fide litigant and adequate safegu series of actions. Prosser, Torts, 886 (1941), quoted in Dairies v. Raritan Valley Farms, 117 A.2d 889, 896 (N.J. 1995). In Wolfe, which was relied on the fact that t ere other "remedies" available to the plaintiffs, 1pfincluding "the discip f the courts, the bar association and the state," quoting Levin, supra o2d at 608-09. However, those remedies provide no benefit to Micha e circumstances of this case. Michael's ex-wife accused him of the most heinous acts against her and his child. This included assault and battery, sexual assault and battery, and a history of violence and intimidation. Despite the fact that he prevailed against those claims, the presiding court had no ability to restore his reputation or S lierrought against attorneys, the majority also 29 EFTA02775995 compensate him for his loss or the damage done to him as a businessman in the community. Indeed, these facts are the quintessential example of why the cause of action of malicious prosecution was originally established in the common law in the first place. The English courts recognized, despite their rule that the losing party pays the fees and costs of the prevailing party, that was i nt to remedy the harm resulting from vexatious litigation when the rred to one's reputation, property, or business. It is noteworthy th Eng ish courts, which recognize a broader litigation privilege than courts (an absolute immunity for anything said in litigation, re f relevance to the subject matter), still reject the application of ilege to a malicious prosecution claim. In this country, where the no ligation for the losing party to pay the fees and costs to the prevai at least in a dissolution action such as the case sub iudice, and the It n privileges more narrowly construed, it makes no a?hsense to hold that p rivilege eliminates the cause of action for malicious t prosecutions 30 EFTA02775996 CONCLUSION For the reasons stated above, the Final Judgment of the Circuit Court should be reversed and the cause remanded for further proceedings. A Cos 31 EFTA02775997 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list, by email, on May 6, 2014. +o Jack M. M, Esq. W. Charles Hughes, Esq. SIEGAL, HUGHES & ROS 4046 Newberry Road O P.O. Box 90028 n( jross@shrlawfi o Gainesville, FL 3260 ) chughes@shr .com knorman .com avvhitbe lIwfirm.com d ON & ROCKENBACH, P.A. se Commons/Suite 350 est Railroad Avenue st Palm Beach, FL 33401 561) 721-0400 Attorneys for Appellant pmb@FLAppellateLaw.com lab®FLAppellateLaw.com kbt@FLAppellateLaw.com By: /s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. 285862 32 EFTA02775998 CERTIFICATE OF TYPE SIZE & STYLE Appellant hereby certifies that the type size and style of the Initial Brief of Appellant is Times New Roman 1 4pt. /s/ Philip M. Burlin‘A, PHILIP M. BURLIN Florida Bar No. 28 C 33 EFTA02775999 SERVICE LIST Steinberg v. Steinberg Case No. 01-2012-CA-958 Kevin B.. Esq. Michael E. Lockamy, Esq. BEDELL, DITTMAR, DEVAULT, PILLANS & COXE, P.A. 101 East St. Jacksonville, FL 32202 (904) 353-0211 kbc®bedellfirm.com syt@bedellfirm.com mel@bedellfirm.com jbam®bedellfirm.com Attorneys for Appellee Robert S. Griscti, Esq. MEAD & BOVAY A 901 N.W. 57th St. Gainesville, FL 32605 (352) 331-9092 rgriscti®deamne ewelker®deanm d.c m Attorneys fo p e „O <) 34 EFTA02776000