EFTA02776174
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EFTA02776174, 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/EFTA02776174.pdf. Retrieved via Epstein Files Transparency Act Resources, https://tommycarstensen.com/epstein/data/documents/court/02776/EFTA02776174.html.
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Filing # 22178088 E-Filed 01/05/2015 04:34:04 PM , 2014 5:44 PM IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT J. Appellant, -vs- JEFFREY EPSTEIN, Appellee. INITIAL BRI On appeal from the Fifteenth J CASE NO. 4D14-2282 PELLANT rcuit in and for Palm Beach County SEARCY DENNY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 wbk@searcylaw.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 kbt®FLAppellateLaw.com EXHIBIT #2 *** FILED: PALM BEACH COUNTY, FL SHARON R BOCK, CLERK. 1/5/2015 4:34:04 PM *** EFTA02776174 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES PREFACE STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT POINT- I N-AP iii-vii ANik , viii C )O : 79 10-40 THE TRIAL COURT ERRED TING SUMMARY JUDGMENT TO THE DEF AND APPLYING THE LITIGATION PRIVILEGE ABSOLUTE BAR TO A MALICIOUS PROSECU IM. CONCLUSION '<) 40 CERTIFICATE OF SERVCE ) 41 CERTIFICAT F T SIZE & STYLE 42 ii EFTA02776175 TABLE OF AUTHORITIES CASES Alamo-Rent-A-Car. Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994) Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039, 1041 (Fla. 1982) Clark v. Druckman 624 S.E.2d 864, 872 (W. Va. 2005) Crowell v. Herring, 301 S.C. 424, 392 S.E.2d 464, 468 (Ct.App.1990) Del Monico v. Traynor, 116 So.3d 1205, 1211 (Fla. 2013) Doe v. United States, 817 F.Supp.2d 1337 (S.D. Fla. 201 502008CA028058 rit 2.15th Circuit) E.W. v. Epstein ("EW" or "Jan Echevarria. McCalla, Rayer, arrett & Frappier v. M, 950 So.2d 380 (F11/47 Engel v. CBS 182 F.3d (2d Cir. 1999) Finkel mpson & Loughran v. Hemispherx Biopharma, Inc., 7 332, 346 (D.C. 2001) Fisher v. Payne, 113 So.378 (Fla. 1927) Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) iii PAGE 17 54"..\' 27 39 27 10, 15, 16 3 2 15, 29, 33 18 27 19,20, 21, 33 13, 15, 23 EFTA02776176 v. Dozorc, 312 NW 2d 585, 595 n.20 (Mich. 1981) 18 v. Serio. 496 So.2d 412, 414-15 (La.Ct.App.1986) 26 Graham-Eckes Palm Beach Academy v. M, 573 So.2d 1007 (Fla. 4th DCA 1991) Hogen v. Valley Hosp., 147 Cal.App.3d 119, 195 Cal.Rptr. 5, 7 (1983) Indus. Power & Lighting Corp. v. W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981) v. BellSouth Telecommunications, 372 F.3d 1250, 1277 (11th Cir. 2004) ' ' Jane Doe No. 1. et al. v. United States, 749 F.3d 999 (11th Cir. 2014) < 1. v Sackett, 793 So.2d 20, 25 (Fla. 2d l ICalii_ja , r ii) 522 U.S. 118, 133 (199 Ke s v. C sle 07, 94 A.2d 200, 205 (1985) Credit Co 3 7, 494 A.2d 200, 204 (1985) L.M. v. pstein ("LM"), Case No. 502008CA028051XXXXMBAB (Fla. 15th Circuit) LaFrance v. U.S. Bank National Association, 141 So.3d 754 (Fla. 4th DCA 2014) A22, 32 CP 26 27 25 2, 3 25 18, 24 35 26 2 10 iv EFTA02776177 Mantia v. Hanson, LatAm Investments, LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011) 29 Levin, Middlebrooks, Mabie, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994) 12, 14, 15, 25, 29, 30, 31, 33, 34 C5 4".\'' Loigman v. Township Committee, 889 A.2d 426, 436 n.4 (NJ. 2006) 27 Mansfield v. Bernabei, 727 S.E. 2d 69, 72-73 (Va. 2012) -3 12 190 Or.App. 412, 79 P.3d 404, 408-09 (2003) 26 McKinney v. Okove 282 Neb. 880, 889, 804-06 N.W.2d 571, 5 - 1 ) 37 Myers v. Hodges, 44 So. 357 (Fla. 1907) North Star Canital Annuisitio (s\ 611 F.Supp 2d 1324 (M. 09) 961 So.2d 356 (Fl A 2007) Pr cacci v 402 So. a. 4th DCA 1981) iries v. Raritan Valley Farms, 117 d 889, 896 (N.J. 1995) Rainier's Dairies v. Raritan Val. Farms, 19 N.J. 552, 117 A.2d 889, 895 (1955) Rushing v. Bosse, 652 So.2d 869, 875 (Fla. 4th DCA 1995) 11, 12, 13, 20, 29 25 23,31,33,35 22 34 26 24 EFTA02776178 SCI Funeral Services of Florida, Inc. v. Henry 839 So.2d 702 (Fla. 3d DCA 2002) 25, 31, 32 Sierra Madre Dev., Inc. v. Via Entrada Townhouses Ass'n, 514 P.2d 503, 507 (Ariz. App. 1973) 27 Simms v. Seaman, 69 A.3d 880, 890 (Conn. 2013) 27 =Bros. Real Estate & Investment Co. v. IMI, 109 So.623 (Fla. 1926) 5:) The Estate of Mayer v. Lax. Inc., 17, 18 998 N.E. 2d. 238, 250 (Ind. App. 2013) 26 Tidwell v. Witherspoon, 21 Fla. 359 (Fla. 1885) 17 Willis & Linnen Co., L.P.A. v. Linnen : 837 N.E.2d 1263, 1265-66 (Ohio Ai, 2005) 27 Wolfe v. ~, 128 So.3d 67 (Fla. 3d 6, 7, 8, 10, v. Yurko 11, 19, 24, 26, 28, 29, 30, 31, 32, 33, 34, 39 446 So.2d 11 (F1 ,Sfh DCA 1984) 21, 22, 25,31 STAT § 57 tat. 38 § 768. a), Fla. Stat 25 § 772.1 , Fla. Stat. 3 § 895.01, Fla. Stat. 3 vi EFTA02776179 OTHER AUTHORITIES American Law Institute's Restatement (Second) of Torts § 587 27 Expansive Interpretation of the Crime Victims' Rights Act and Similar State Statutes, 104 J. Crim. L. & Criminology 59 (2014) 3 Prosser and Keeton on the Law of Torts 119, p. 871 (5th Ed. 1984) 18 Protecting Crime Victims' Rights Before Charges Are Filed: The Need for Restatement (Second) of Torts § 587, cmt. (a) Restatement (Second) of Torts § 674 eopAik Restatement (Second) of Torts 39 36 36 CO '' vii EFTA02776180 PREFACE This is an appeal from a Final Summary Judgment of the Circuit Court. The parties are referred to by their proper names, as they appeared below, or as otherwise designated. The following designations will be used: (A) — Appendix to Initial Brief (R) — Record-on-Appeal viii EFTA02776181 STATEMENT OF THE CASE AND FACTS This appeal arises from a Summary Judgment granted against the Counter- Plaintiff (hereafter "Plaintiff") on a malicious prosecution case based solely on the application of the litigation privilege (R7:1202-05). The malicious prosecution claim and the lawsuit out of which it arose are part of an interrelated setae' riminal and civil cases in which these parties have been involved for ye mmary of the history of those proceedings should suffice to provican equate factual context for this appeal. In September of 2007, billionaire Jeffrey Epgtein ("Epstein") entered into a 7 V/ Non-Prosecution Agreement ("NPA") ith th United States arising from an \ e <licinvestigation into his criminal sexual c uc with a large number of minor female icvictims (R2:285). In that NP , n agreed, inter alia, to plead guilty to state felony charges involving e Icitation of prostitution and the procurement of minors to engage i stitution and further agreed to be registered as a sex offender (R2 pstein also agreed to accept an 18 month sentence of incarce the state charges, a one year period of community control, and to waive lability to those of his victims who filed claims exclusively under 18 U.S.C. § 2255 (R2:285). In return for satisfying those conditions, among others, the United States agreed it would not prosecute Epstein for any federal offenses including, but not limited to, numerous allegations of sexual assault (R2:285). 1 EFTA02776182 Subsequently, Epstein pled guilty to the state felony charges and, apparently concluding that the NPA had been complied with, the United States has not pursued any criminal charges against Epstein (R2:285) a is an attorney who represented nine of the many victims of Epstein's criminal conduct, and he filed three civil act eeking compensatory and punitive damages outside the limitations of C. § 2255 against Epstein, alleging sexual assault and battery (R2. , 3:549). Those cases included Jane Doe v. Epstein ("Jane Doe"), a o. 08-CIV-80893, U.S. District Court, Southern District of Florida; ("LM"), Case No. 502008CA028051XXXXMBAB (Ha. 15 • ; and E.W. v. Epstein ("EW" or ‘, "Jane Doe #2"), Case No. 502008 8 58XXXXMBAB (Fla. 15th Circuit) (R2:282). aggressiv ed discovery into the full scope of Epstein's )criminal conduct, including th otential involvement in that conduct of some of Epstein's high profil iates (R2:286-87). AdditiQh y, on behalf of two of his clients, filed an action in federal eging that the NPA had been negotiated in violation of the Crime Victim ights Act (CVRA), 18 U.S.C. § 3771. Jane Doe No. 1, et al. v. United States, 749 F.3d 999, 1002 (11th Cir. 2014). alleged that federal prosecutors had arranged with Epstein to keep the NPA secret from the victims to prevent them from raising any objections to it in court. Doe, 749 F.3d at 1002. 2 EFTA02776183 Among other relief in that federal lawsuit, sought rescission of the NPA, a result which would reopen Epstein's exposure to full prosecution for numerous federal sex offenses. Doe 749 F.3d at 1002. That litigation has continued for over six years, and the district court has rejected the Government's Motion to Dismiss. Doe v. United States, 817 F.Supp.2d 1337 (S.D. Fla. 2011). Most fi tly the United States Court of Appeals for the Eleventh Circuit uphe al court's 0 0ruling that entitled M' clients to the corresponde ce een Epstein's attorneys and the United States leading up to the NP Doe, 749 F.3d at 999. See generally, Paul G. Cassell, J. Ed athanael James Mitchell, Bef es Are Filed: The Need for ‘ Expansive Interpretation of the Cr Vi ims' Rights Act and Similar State 4‘ t Statutes 104 J. Crim. L. & C ' 'n 59 (2014) (discussing the Epstein case in CtheIdetail and its importance t elopment of crime victims' rights law). While pursuing the CVRA case and, among others, the three civil cases not lone for his clients, Epstein filed a lawsuit in the Circuit Court of ecthe Fifte a udicial Circuit against M, Scott Rothstein, and one of clients, designated as "L.M." (R1:1-103). Epstein's Complaint contained five counts, including a civil claim under the Florida Racketeer Influenced and Corrupt Organization Act (RICO), § 895.01, Fla. Stat., et seq.; a civil theft claim pursuant to § 772.101, Fla. Stat., et seq., fraud, conspiracy to Protecting Crime Victims' Rights 3 EFTA02776184 commit fraud, and abuse of process (R1:30-35). The gravamen of the Complaint was that after had filed the cases against Epstein (suits on behalf of his clients), he had briefly joined the law firm of Rothstein, Rosenfeldt & Adler, P.A. ("RRA"), which subsequently disbanded after Rothstein was charged with and pled guilty to, operating a Ponzi scheme (R1:3). Rothstein's Ponzi schemb.irllvolved, inter alia, the assignment of rights to future settlement agreeme ' vil actions csi (R1:5). Essentially, Epstein's Complaint claimed that Roths ein, 7 ards and L.M. v defrauded him and engaged in criminal conduct, as abuse of process, by trying to maximize the value of the claims ag hile reciting in detail the misconduct of Rothstein which had e public knowledge, Epstein's Complaint did not allege any involv in the Ponzi scheme, only that he "knew or should ha " about Rothstein's misconduct (R1:10). Epstein's Complaint did t de is own extensive criminal culpability. filed swer denying the material allegations of the Complaint AIand included Snterclaim against Epstein initially alleging abuse of process and subseq ending to include a malicious prosecution claim after Epstein's claims re all dismissed (as detailed above) (R1:121-136; 2:330-37, 338-39) . Essentially, the malicious prosecution Counterclaim alleged that Epstein had initiated his suit knowing that it had no reasonable factual basis and that actions in furtherance of his clients' interests were both entirely proper and 4 EFTA02776185 absolutely privileged (R2:335). The Counterclaim further alleged that the suit against was initiated for the sole purpose of intimidating and interfering with his ability to represent his clients in ongoing civil actions against Epstein (R2:332). alleged the lawsuit was a vehicle for Epstein to make false statements harmful to a reputation, professional standiftg,-)end his ability to effectively represent his clients (R2:333-35). C ityAfter extensive litigation, Epstein dropped L.M. as par nd reduced his 114. claims to abuse of process and conspiracy to engage e of process on the part of Rothstein and (R1:200). On September 22, 2010, Edward a Motion for Summary Judgment which was initially denied as premat 40-68, 272). Subsequently, renewed that motion on Oc r 2011 (R2:360). After extensive filings in support of the renewed otion for Summary Judgment, a hearing date was set (R4:607). On Augu 2012, the day before the matter was scheduled to be heard and witfi ever contesting either the facts or the law on which a Motion mazy Judgment was based, Epstein filed a Notice of Voluntary Dismis as to his remaining claims (R4:612-13). a ' Counterclaim against Epstein, however, was still pending (R2:330-37). Subsequently, the court granted leave to amend that pleading to include a claim for punitive damages (R4:742-43). The malicious 5 EFTA02776186 prosecution claim in the operative pleading, the Fourth Amended Counterclaim, alleged that the filing of the claim by Epstein constituted malicious prosecution because "Epstein filed civil claims against . . for the sole purpose of further attempting to intimidate . . . and others into abandoning or settling their legitimate claims for less than their just and reasonable value" (R4:750. After the filing of the Fourth Amended Counterclaim,] \ ~~1 rd District issued its decision in Wolfe v. 128 So.3d 67 (Fla€1L)LA 2013), which appears to be the first opinion in the country to ho malicious prosecution claim is barred by the litigation privilege. A e ed infra, Wolfe conflicted 4,with pre-existing Florida case law on tit* < e. ased on Wolfe, Epstein filed a Motion for Summary Judgment ar i i ter alia, that claims were barred, as a matter of law, by e it non privilege (R5:806, 808). After a hearing onCe in tion, the trial court stated its intention to grant summary judgment vor of Epstein (SRI :1268-71). Before a written ruling, Silihowever, filed a Motion for Reconsideration, observing that the case "squar nted . . . [the issue of] whether a non-lawyer is protected from liabili y the litigation privilege when he initiates a civil lawsuit knowing that it is not only unsupported by probable cause but that it is completely unsupported by both the facts and the law and is filed solely for the purpose of intimidation and 6 EFTA02776187 extorting a negotiating advantage in other civil litigation" (SR2:1).' That motion cited extensive case law from other jurisdictions demonstrating that Wolfe was an aberration and that virtually no other court in the county had ruled that a cause of action for malicious prosecution could be barred by the litigation privilege (SR2:1- 37). Thereafter, the trial court entered an Order Granting E tem sMotion for Summary Judgment (R7:1202-05). The trial court's order sated '21203): [T]he cases cited by involved mali& us osecution claims stemming from actions filed by the party the'ms v , not counsel. In the instant case, it was conceded that all filings were done by an attorney in good standing with the lori$ Bar, rather than by an individual party. The trial court also entered a se Be ta iOrder Denying a' Motion for Reconsideration without co t .1206-07). The court then entered a Final Summary Judgment. wa now takes this appeal from that Judgment (R7:1208-09). 't or O Motion for Reconsideration is included in the Appendix and is the subject of a Motion to Supplement the Record-on-Appeal filed contemporaneously with this brief and will be referenced as A1-37. 7 EFTA02776188 SUMMARY OF ARGUMENT The trial court erred in applying the Third District's opinion in Wolfe to justify summary judgment against the Plaintiff on his malicious prosecution claim. The Wolfe decision is aberrational, both within Florida and throughout the nation, as it holds that the litigation privilege bars, as a matter of law, ~a n licious cprosecution action against the party or parties who actually filed the itial action. The Wolfe decision makes no attempt to reconcile the in isputable fact that the C:, litigation privilege and the tort of malicious pros have coexisted at the common law without conflict for hundreds of y that there is apparently no ‘, other decision in the country that reach t co clusion that the majority did in Wolfe. Moreover, there is conflictin c 1 w on the issue in Florida, which the Wolfe decision simply ignor ng authority from this Court. CTherefore, this C rt uld not follow Wolfe, but should conclude, consistent with exten uthority in Florida and throughout the country, that the litigation privj1Z does not apply to the malicious initiation of meritless litigation. The li rivilege is designed to protect statements and actions during litigati which are pertinent to the subject matter, but prior to Wolfe, the privilege has never been extended to eliminate the cause of action for malicious prosecution and to thereby immunize people who maliciously file false proceedings to damage others. The tort of malicious prosecution contains within its 8 EFTA02776189 elements a qualified immunity, since the plaintiff must demonstrate that the underlying action was brought without probable cause and with malice, and that is enough protection to ensure that that valid litigation is not stifled. However, allowing the litigation privilege to immunize parties who maliciously file meritless litigation is unjustified by the relevant policy considerations, and wil inate a significant deterrent to unnecessary litigation which unreaso rdens the O court and the parties victimized by such conduct. C ) Therefore, for the reasons stated above, this Court should reverse the Summary Judgment entered by the circuit mand the case for further proceedings. A' S\ ( S \ r ic S .1 1111V 9 EFTA02776190 ARGUMENT POINT -ON-APPEAL THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT AND APPLYING THE LITIGATION PRIVILEGE AS AN ABSOLUTE BAR TO A MALICIOUS PROSECUTION CLAIM. Standard of Review 44eit. Orders granting summary judgment are reviewed unde ovo standard of review. LaFrance v. U.S. Bank National Association 1 .3d 754 (Fla. 4th DCA 2014). Additionally, where the mate are not disputed, the determination whether a privilege arises is ‘ SV, of law which is reviewed de novo. So. cDel Monico v. Traynor, 116 Sf);, 211 (Fla. 2013). l Introduction c*)GoThe trial court erre in eluding that the litigation privilege bars a claim for malicious proseci tt 2 The trial court relied primarily on the Third District's decision in o v. , 128 So.3d 67 (Fla. 3d DCA 2013) which held that the liti rivilege bars malicious prosecution claims. However, Wolfe conflic with decisions from other district courts in Florida, as well as overwhelming (and seemingly unanimous) authority from other jurisdictions. Wolfe is also inconsistent with the development of the litigation privilege and 2 In this appeal, challenges only the trial court's ruling on his malicious prosecution claim, not his abuse of process claim. 10 EFTA02776191 malicious prosecution cause of action in the common law. It does not appear any other jurisdiction in the United States applies an absolute litigation privilege to bar malicious prosecution claims; in fact, that cause of action has coexisted with that privilege in the common law for hundreds of years without conflict. SiThe overwhelming weight of authority and the pertin c policy ASeconsiderations demonstrate that Wolfe was wrongly decided, an t litigation (:, privilege as developed by the Florida Supreme Court does of ju the result in ni,this case. Therefore, this Court should reverse the Su Judgment. "SiThe Development of the Litigation Petite\ Florida Supreme Court c c Decisions /•:‘, The Florida Supreme Court first addressed the scope and application of the litigation privilege in Myers / v. Hodges, 44 So. 357 (Fla. 1907). In that case, -V I Hodges had filed suit ag inst a corporation in which Myers was the president. Hodges' Bill of E ity7 contained allegations relating to Myers personally, including tha was "a tricky, dishonorable, unscrupulous and conscienceless man;" d at he had stated he would do "everything in his power to beat [Hodg 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, after the conclusion of that suit Myers sued Hodges for libel based on those defamatory statements. The trial court ultimately directed a verdict for Hodges on 11 EFTA02776192 the libel claim, and the Florida Supreme Court affirmed, based on what is now called the litigation privilege. 3 In Myers, the Supreme Court first addressed the common law in England on this issue, but rejected its rule of an absolute litigation privilege as to any statements made in judicial proceedings. Instead, the Court adopts:1(14e rule developed in the American common law that the litigation privilege would only apply to statements made in a judicial proceeding which were to the subject matter of the action. The Court stated: A N)I We think the ends of justice will be effectually accomplished by not extending the privilege so far as to make it an absolute exemption from liability for defamatory wordei e lly and entirely outside of, and having no connection with, the et of inquiry. Myers, 44 So.at 361. \ / it The Court in Myers id ttote, however, that much latitude should be granted C r? y in determining whether sta ents are pertinent to the proceedings; and that if the statements wer,e not spertinent, a qualified privilege arose that could only be r c\ ‘,...) The Myers decision did not use the term "litigation privilege." That phrase first appeared in Florida case law in the certified question from the Eleventh Circuit Court of Appeals in Levin, Middlebrooks, Mabiea, Mayes and Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994). Some jurisdictions use different terminology such as "judicial privilege," Mansfield v. Bemabei, 727 S.E. 2d 69 72-73 (Va. 2012); or just refer to it generally as an absolute privilege, e.g. v. Serio, 496 So.2d 412, 414 (La. App. 1986). will refer to it as the "litigation privilege" throughout this brief. 12 EFTA02776193 overcome by showing that the party made the challenged statements with express malice. Myers explained justifications for allowing such a privilege relate to how a lawsuit is handled after it has been filed: That parties and counsel should be indulged with great latitude in-the freedom of speech in the conduct of their causes in cou d in rts; asserting their rights, because in this way the purposes o ' i will be served. Id. The Myers decision demonstrates that the litigation p liege arose from and has been developed by the common law, and tha i fled only by the policy is considerations involving in-court procee< tn1%7 The policy considerations j., ,, justifying the privilege — latitude regardthaSte conduct of ...[a] cause in court" — do not in any way pertain to thiftling of a lawsuit, much less a meritless one brought with malicious mo ves. /c htgia, The first significan rification of the litigation privilege in Florida after Myers occurred/in Fr ovich v. Fridovich, 598 So.2d 65 (Fla. 1992). In that case, the Supre ‘`I held that defamatory statements voluntarily made by a private I individt to police before the filing of criminal charges were not absolutely privileged. Instead, such statements were only entitled to a qualified privilege which could be overcome by a showing that they were made with express malice. The Court noted that its ruling was consistent with the view of the majority of 13 EFTA02776194 other states and balanced society's interest in detecting and prosecuting crime against a potential defendant's interest in not being falsely accused. Subsequently, in Levin, Middlebrooks, Mabie, a, Mayes and Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994), the Court held that absolute immunity would be afforded to an act involving tortious I interference with the business relationship that occurred during the course of x , judicial proceeding, so long as the act had some relevance' to that proceeding. In that case, the Levin firm represented a client in I n against an insurance company. The insurance company subpoenae 4hat firm's attorneys to be a witness at trial, resulting in the disqua t f that firm as counsel for the plaintiff However, the insurance corn did not call that attorney as a witness at the trial. After the case was c adverse to the insurance company, the law firm sued the insurance I comya y for intentional interference with a business relationship for issuingthe subpoena and obtaining disqualification of the law firm. The Court in LItin held: 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. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a 14 EFTA02776195 lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct. Levin, 639 So.2d at 608. It is significant that the Levin holding was limited to acts occurring during the legal proceedings, and it did not deviate from the Fridovich holding pertaining -41"4 to acts involved in initiating litigation. In Echevarria, McCalla, Raymer, & Fra ler v 'S iSo.2d 380 (Fla. 2007), the lower court held that the litigation privile e, a creature of the u5common law, did not apply in cases where the action was created by 8cstatute. The Florida Supreme Court ove itrn at decision holding that the ,1/4i, litigation privilege applies in judicial*See ngs, whether the underlying case involved a common law tort or a statutory'cause of action. The Court held that "the - _ nature of the underlying .-dispute simply does not matter" since the policy considerations justi ing tSPrivilege still apply, those considerations were the "perceived nec sity or candid and unrestrained communications in judicial proceedin 5 o.2d at 384). *apt y, in Delmonico v. Trayner, 116 So.3d 1205 (Fla. 2013), the Court held that the litigation privilege did not grant absolute immunity for an attorney's conduct in making defamatory, ex parte, out-of-court statements to potential nonparty witnesses, even though that conduct arose from the attorney's 15 EFTA02776196 representation of his client in litigation. In discussing the litigation privilege, the Court in Delmonico stated: [T]his Court's recognition of the privilege derived from a balancing of two competing interests — the public interest in allowing litigants and counsel to freely and zealously advocate for their causes in court versus protecting the rights of individuals, including the right of individual to maintain his or her reputation and not be subjec slander or malicious conduct. Delmonico, 116 So.3d at 1217. O 'S The Court in Delmonico concluded that since judic ersight and other protections applicable in judicial proceedings available (or far less effective) for deterring conduct during an o informal investigation, such S, conduct was only entitled to a qualifi p i ge. That qualified privilege would apply if the statements at issue rel ant to the subject matter of the lawsuit; however, a plaintiff could clot a the privilege by proving that the statements c rted were made with express m (116 So.3d at 12, 18-19). t arK ,Malicious P Stion Claims in Florida side-by-side with Florida case law developing a limited litigation privile: well-developed case law allowing malicious prosecution claims. A review of these cases demonstrates that the litigation privilege was never viewed as inconsistent with the tort of malicious prosecution. 16 EFTA02776197 While the tort of malicious prosecution was initially recognized in Tidwell v. Witherspoon, 21 Fla. 359 (Fla. 1885), it was first discussed in-depth by the Florida Supreme Court in Bros. Real Estate & Investment Co. v. =, 109 So.623 (Fla. 1926). There, the Court described malicious prosecution as "a very ancient action" and defined its elements as follows: An action for maliciously putting the law in motion lies, in all cases where there is a concurrence of the following elements; 1) The commencement or continuance of an original criminal or civil judicial proceeding. 2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceedings. 3) Its bona fide termination in favor of the present plaintiff. 4) The absence of probable cause for such proceeding. 5) The presence of malice therein. 6) Damage conforming to- legal standards resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action. Bros. Real Estate 109 So Those elements re requirements for a prima facie malicious c eirt prosecution action. See Al ent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994). As I IMI istated in Bros, supra, malicious prosecution was an action ex ii delicto-athe common law (109 So. at 626). Its genesis was English common law N which, despite providing for the losing party in litigation to pay the fees and costs of the prevailing party, nonetheless recognized a need for a remedy when special 17 EFTA02776198 Prosser and Keeton on the Law of Torts 1 The competing policy cons claims were addressed in the Cm interest in freedom from nju t 'able litigation and the societal interest in not chilling access to th rts were protected by the onerous requirement that the damages beyond those expenses had been suffered by the prevailing party. See Engel v. CBS. Inc, 182 F.3d 124, 128 (2d Cir. 1999) (collecting cases).4 Based on the English common law, malicious prosecution was recognized as a cause of action in American courts, e.g., Bros, supra, with the relevant policy considerations described by Prosser, as follows: The law supports the use of litigation as a social means disputes, and it encourages honest citizens to brin justice. Consequently the accuser must be given a freedom to make mistakes and misjudgments withou to liability. On the other hand, no one sh subject a fellow citizen to prosecution and without an honest belief that the a 8 ing als to agree of g subjected e permitted to proper purpose ay be found guilty. 7 (5th Ed. 1984). underlying malicious prosecution of the prima facie case. The individual's et ,plaintiff prov absence of probable cause and, most important, express malice. Id. As alina v. 522 U.S. 118, 133 (1997) (Scalia, J., concurring) "[T]he was a kind of qualified immunity built into the elements of the tort." Justice Scalia addressed that safeguard in the context of the Kalina case as follows: 4 For a brief summary of the developments in English law from the unsuccessful claimant's obligation to pay costs and fees to the recognition of the malicious prosecution action dating back to the Norman conquest, see v. Dozorc. 312 NW 2d 585, 595 n.20 (Mich. 1981). 18 EFTA02776199 At common law, therefore, Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution. The tortious act in such a case would have been her decision to bring criminal charges against M, and liability would attach only if could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful. Kalina's false statements as a witness in support of the warrant application would not have been an independent actionable tort (although they might have been evidence of malice or initiation malicious prosecution suit), because of the absolute protecting such testimony from suits for defamation. The Litigation Privilege Was Not Applied to Malicious Froseafion Claims in Florida Prior to Wolfe Well-developed Florida case law allowed s prosecution claim to -Ss,proceed even in the face of an assertion of • rivilege. In Fisher v. Payne, 113 So.378 (Fla. 1927), the Florida Court addressed a case in which defendants asserted the litiga • lege to defend against a malicious prosecution action. There court appointed the three dants to assess Fisher's sanity. They all concluded that she was in e. trial court then adjudged Fisher to be insane and had her transport s e hospital for restraint and maintenance. Approximately a year late uit court rendered a decree restoring Fisher to judicial sanity. After she was restored to sanity, Fisher filed suit against the three defendants for malicious prosecution, libel, and false imprisonment. The trial court entered judgment for the defendants and Fisher appealed. a lunacy inquisition filed against her, and the 19 EFTA02776200 wad judgment on the pleadings wa In Fisher, the Florida Supreme Court first addressed the plaintiffs' libel claim, and in short order determined that it was barred by the litigation privilege adopted in Myers, supra. However, the Court in Fisher did not apply the litigation privilege to the malicious prosecution claim, but rather evaluated the III (common law) pleadings and determined them insufficient to demonstrate lla prima facie case for malicious prosecution. 5 Specifically, the Court found eclaration (--'" did not allege that any of the defendants had initiated te r y proceedings c wereaagainst Fisher. The plaintiffs' pleading acknowled I t the defendants appointed to the examining committee by the c iirt the action had been filed, but there was no allegation that the defe re involved in the initiation of the action. As a result, that required a nt of the tort had not been alleged and a . Id. 113 So. at 381. In Fisher, the Cou al oted that the plaintiffs had failed to allege the essential element of malicious prosecution that the lunacy proceedings were commenced Wat probable cause. Id. If the Court in Fisher believed that the I itigatt I ege established in Myers applied as a bar to the malicious prosec n claim, there would have been no need to address whether plaintiffs' allegations sufficiently stated the elements of that tort. Obviously, the Florida s The Court in Fisher also disposed of the false imprisonment claim on the ground that it was not adequately pled (113 So. at 380). 20 EFTA02776201 Supreme Court recognized that the litigation privilege and the cause of action for malicious prosecution coexisted in the common law without conflict. After Fisher and before Wolfe, numerous district court decisions in Florida addressed whether the litigation privilege barred a claim for malicious prosecution. All of these decisions followed the implicit reasoning of Fisher — until-the Third District's unique decision in Wolfe, supra. , In v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 84) e Fifth District consolidated two actions in which a doctor sued who had initiated or participated in an unsuccessful medical malpra n against him. In one suit, \ 'Ct .'sued Yurko, the attorney that r A e t the plaintiffs in the medical ibi4" malpractice action; and in a second su e s ued the plaintiffs (the Dormans) and Barnett M, the expert wi estified for them. alleged claims for perjury, libel, slander, fam t n and malicious prosecution. The trial court dismissed the complaint iogainst the Dormans and =, and granted summary judgment in ifirr of Yurko. appealed both rulings and they were consolidated or, appeal. 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 the litigation privilege (446 So.2d at 1164-65). The court then stated: 21 EFTA02776202 The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution. [Footnote deleted.] =, 446 So.2d at 1165. The Fifth District proceeded to analyze complaint and determined that it sufficiently alleged the elements of malicious prosecutio claims, concluding that the dismissal order should be reversed.6 Thus, e Fifth District in concluded that the litigation privilege barr other claim in complaint against the Dormans and M, it di bar the malicious prosecution claim. Similarly, in Graham-Eckes Palm Beat li caclemy v. MI, 573 So.2d 1007 (Fla. 4th DCA 1991) (gel: curiat.flig Court affirmed a final judgment denying relief on claims for intent ---' al inference with a contract for sale of land and slander of title. This C( Itt Appellant contends Ahe absolute privilege normally accorded to pleadings should not apply where the complaint is wholly frivolous and filed to interfere with the performance of a contract for the sale of property. While appellant's 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 v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981). [E.S.] Graham-Eckes, 573 So.2d at 1008. 6 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). 22 EFTA02776203 Thus, this Court 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. Finally, in Olson v. M, 961 So.2d 356 (Fla. 2d DCA 2007), Second District also concluded that a malicious prosecution action was n y the litigation privilege. In that case, was in a custody ba man named Olson, and she and two of her friends signed affidavits ng that he was stalking her. Those affidavits provided the basis f cc al to be brought ect i against Olson. However, Olson was acquits SS, en sued the three women for Nt40malicious prosecution. The trial court , tnmary judgment to M, and the Second District reversed, c i inter alia, that Olson's claim was not barred by the litigation pri e7,ite Second District, in an opinion authorized by then-Judge Canady, stated: on Fridovich is unwarranted. In relying on Fridovic confuses the law of defamation-with which Fri als-with the law of malicious prosecution-which is at • the instant case. Olson has made no claim based on AiwaLion, and the fact that defamatory statements may have been e in the course of the conduct which Olson alleges as the basis for his claim does not transform that claim into a defamation claim that is subject to an assertion of the absolute privilege or qualified privilege discussed in Fridovich. There is niSvalent privilege 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 23 EFTA02776204 prosecution claim by disputing an element or elements of the cause of action alleged or by raising an applicable affirmative defense. Olson, 961 So.2d at 360-61. That rationale was consistent with prior Florida law and essentially tracks Justice Scalia's analysis of the common law in Kalina, quoted supra, p. 19. Thus, before Wolfe, the Fifth, Fourth and Second Districts ru d that the litigation privilege did not apply to bar malicious prosecue Other references in Florida district court decisions demonstrate that prior to Wolfe the litigation privilege was not con e be an absolute bar to a r S45 .malicious prosecution action. For example, • g v. Bosse, 652 So.2d 869, „C c 875 (Fla. 4th DCA 1995), this Court % the complaint stated, inter alia, a cause of action for malicious pro ion n behalf of a child who was subject to a wrongful adoption procee trial court dismissed that count as to two toi attorneys who had been nN in edias defendants. This Court, in an opinion written by then-Judge Pa * te, versed that ruling, stating a malicious prosecution claim could proceel! 'p oper circumstances (652 So.2d at 875): act that Chilton and Bosse are attorneys does not immunize them 9m 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 making a determination to proceed, provided that as long as the other elements of a malicious prosecution are also proven. 24 EFTA02776205 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: As the Levin court cited = v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984), with approval, presumably the cause of action for malicious prosecution continues to exist and would not be barred by the litigation privilege. See IIIII, 446 So.2d at 1165. See also M v. Sackett, 793 So.2d 20, 25 (Fla. 2d DCA 2 case acworker was not entitled to absolute immunity under the n law from malicious prosecution action, although she was entitled to th lified privilege in c A § 768.28(9Xa), Fla. Stat). Finally, in North Star Capital Acqui i ctISAS?Cv. MI, 611 F.Supp 2d A Ir4rAc 1324 (M.D. Fla. 2009), the federal d' trt addressed whether the litigation privilege protected arguably mi 'n dr deceptive documents which had been served on defendants with aint at the initiation of the lawsuit. The district ecbtehd judge ultimately conclud t the Florida Supreme Court would not extend the litigation privilege to at conduct, explaining: Th e airliew s to conduct that occurs during settlement n. See, v. BellSouth Telecommunications, 372 F.3d 277 (11th Cir. 2004). However, not every event bearing any tion to litigation is protected by the privilege because, as noted by counterclaim plaintiffs, "if the litigation privilege applied to all actions preliminary to or during judicial proceedings, an abuse of process claim would never exist, nor would a claim for malicious prosecution." See SCI Funeral Services of Fla.. Inc. 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 litigation privilege). [Footnote deleted.] 25 EFTA02776206 North Star, (611 F.Supp. 2d. at 1330). Thus, prior to Wolfe, there was no case law in Florida holding that the litigation privilege barred a malicious prosecution claim. In fact, all of the case law in Florida supported the contrary conclusion that the litigation privilege and the malicious prosecution cause of action coexisted without conflict, as they' had for hundreds of years in the common law. Other Jurisdictions Overwhelmingly, If Not Unanimously) Hold That The Litigation Privilege Does Not Bar a Malicious Prosecution Claim The pre-Wolfe Florida case law discuss ibcjae uniformly held that the litigation privilege does not bar an actio was consistent — and remains con is t — with the overwhelming weight of authority throughout the co . reviewed the relevant ca la d noted the "wealth of authority" in support of ict last year, the Indiana Court of Appeals ) this conclusion in T tate of Mayer v. Lax, Inc., 998 N.E. 2d. 238, 250 (Ind. App. 2013): lidious prosecution. That case law A vast number of other jurisdictions also hold that even where an —absplute [litigation] privilege bars an action for defamation based on statements made during a judicial proceeding, it does not bar an action for malicious prosecution. See 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; Keys 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 (1955); Mantia v. Hanson, 190 Or.App. 412, 79 P.3d 404, 408-09 (2003); Crowell v. 26 EFTA02776207 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. Those are not the only jurisdictions which hold that the litigation privilege does not bar a malicious prosecution claim. See, e.g., Indus. Power & Li htin . W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981), nc v. Via Entrada Townhouses Ass'n, 514 P.2d 503, 507 (Ariz. pp. C 3), Simms v. Seaman 69 A.3d 880, 890 (Conn. 2013), Finkelste',, •mpson & Loughran v. Hemispherx Bionharma. Inc., 774 A.2d 33 •.C.• 2001), Loigman V. (It (NTownship Committee, 889 A.2d 426, 43 \ . 2006), Willis & Linnen Co., K sSL.P.A. v. Linnen, 837 N.E.2d 1263 2 -6 (Ohio App. 9 Dist. 2005), and Clark v. Drucicman, 624 S.E.2d 864 a. 2005). The general acce ceYthat holding is further demonstrated by the articulation of the lit privilege in the American Law Institute's Restatement (Second) of T4§ 587, which describes the privilege, consistent with Florida law, as foil arty to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. 27 EFTA02776208 However, in Comment (a) to § 587, the Restatement specifically notes that the privilege does not eliminate a claim from malicious prosecution: The privilege stated in this Section is based upon the public interest in according to all men the utmost freedom of access to the courts of justice for the settlement of their private disputes. Like the privilege of an attorney, it is absolute. It protects a party to a private litigation o a private prosecutor in a criminal prosecution from liability - or defamation irrespective of his purpose in publishing the defamatory matter, of his belief in its truth or even his knowledge of its falsity. One against whom civil or criminal proceedings are initiated may recover in an action for the wrongful initiation of the proceedings, under the rules stated in § 674 to 680, if the proceedings have terminated in his favor and were initiated lho probable cause wyt and for an improper purpose. The Wolfe Decision Despite the lengthy history of tkeAt txiS ence of the litigation privilege and the cause of action for malicious prosecution, and the extensive case law cited above, the Third District in Waite/held that the absolute immunity afforded by the litigation privilege barred an action for malicious prosecution. Wolfe does not appear to have /carefully considered the Florida case law or to have reviewed the long-standing common law to the contrary. in Wolfe, a malicious prosecution claim was brought against Florida attorneys who had been retained by their client's New York counsel to file a complaint in federal court in Miami. The complaint addressed a dispute that had been the subject of prior litigation and a settlement agreement between the same parties. However, neither the client nor his New York counsel fully informed the 28 EFTA02776209 Miami lawyers of that prior litigation and the settlement agreement. After filing the complaint the Miami lawyers were provided with those other materials. They immediately notified the client that they could not ethically pursue his claims and they withdrew from the Florida federal court action with court approval. Thereafter, the complaint in that action was dismissed and a final judgml ent in favor of the defendants was entered. After the conclusion of the federal litigation, the ple to Wolfe filed a malicious prosecution action against the Miami la he trial court granted a judgment on the pleadings, concluding that t ga#ion privilege granted them Ils , absolute immunity. ,< -4 On appeal, the Third District altied that determination. In Wolfe, the 1 )Third District relied on its pri ec n in LatAm Investments, LLC v. Holland & 0 (cF .Knight, LLP., 88 So.3d 2 3d DCA 2011), and other authority to hold that the litigation privile plied to the abuse of process claim. With respect to the malicious projtion claim, the Third District stated that "the law is not as clear" whetheg ilege barred that claim. Wolfe, 128 So.3d at 68. Itt its legal analysis, the Third District noted the establishment of the litigation privilege in Myers, supra, and quoted language from Levin, supra, and Echevarria, supra, that absolute immunity must be afforded to "any act occurring during the course of a judicial proceeding" (128 So.3d at 69). The Third District 29 EFTA02776210 concluded that the filing of a complaint was an act that would fall within the scope of that language and, therefore, that conduct must be subject to the litigation privilege. In Wolfe, Judge Sheperd filed a specifically concurring opinion in which he joined in the affirmance, but for different reasons. Judge Sheperd concluded that the malicious prosecution claim was fatally defective because twb. sential elements were missing: malice and the absence of probable caus .3d at 71- 72). The Wolfe opinion also noted that while torti duct such as malicious prosecution may be barred by the litigation there was still a remedy available in "the discipline of the courts ar association, and the state" (128 So.3d at 71, quoting Levin, supra, 6 S .2d at 608-09). However, that was obviously only a relevant co $ er n when attorneys are the defendants in the malicious prosecution act n. T 8se remedies have no application to non-lawyers, such as Epstein in th ub iudice. Moreo Wolfe overlooks the distinction between the wrongful initiation of a lawso d wrongful conduct during the lawsuit. Levin only addressed the latter. There are different policy considerations involved in immunizing those two categories of conduct, differences which have been consistently recognized by courts in Florida (other than Wolfe) and throughout the country. Furthermore, Levin obviously did not intend for the litigation privilege to bar malicious 30 EFTA02776211 prosecution claims because that issue was not before it. Indeed, Levin cited v. Yurko, supra, with approval. It is important to note what the majority opinion in Wolfe failed to 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 ndreds case law discussed supra, in which the litigation privilege was n ap to malicious prosecution claims. In fact, the majority in Wolfe even discuss the dicta from its prior decision in SCI Funeral, supra, tk ct that "the cause of action S ifor malicious prosecution continues to x a would not be barred by the \ litigation privilege" (839 So.2d at 70' The majority opinion i o elied upon the Second District's decision in Olson, supra, for the pro sition that application of the litigation privilege would not eliminate the mali p,k,ts prosecution cause of action. The majority stated that the tort woulnapply to acts committed prior to the filing of the complaint, if they q s a legal cause of the initiation of the underlying proceedings. Puffin ide that extreme limitation on malicious prosecution claims, that analysis ignores that Olson rejected the claim of absolute privilege on the basis that it confused the law of defamation with the law of malicious prosecution (961 So.2d at 360-61). Thus, Olson provides no support for the majority decision in Wolfe. of years. Additionally, the majority did not address any of th Q 31 EFTA02776212 This Court Should Not Follow Wolfe This Court should not follow Wolfe, but should instead adhere to its holding in Graham-Eckes, supra, where, after upholding the denial of relief based on application of the litigation privilege, the court stated (573 So.2d 1007), "while igk vappellant's argument is persuasive, we hold that its proper cause of Ste would ollow the have been one for malicious prosecution." This Court shou t overwhelming weight of authority in Florida and through et country, which ion even in the face of has upheld the ancient cause of action for malicious a claim of litigation privilege. An analysis of the Wolfe opinion opinion did not address the common la history of the litigation privilege or the ft )cause of action for malicious e ton. The majority of Wolfe did not cite any authority on point from a j is' iction that supported its holding, nor even note \ r' str es its weaknesses. The majority its own adverse (albeitaot binding) authority, see SCI Funeral Services, supra. Moreover, whet, policy considerations underlying the litigation privilege and the rosecution cause of action are related, the balance struck by the courts "t ough the common law has been carefully evaluated and established. Wolfe does not explain why these policy considerations have suddenly changed so drastically as to justify the elimination of the cause of action for malicious prosecution. 32 EFTA02776213 While the majority in Wolfe suggests that the tort of malicious prosecution would still exist under its rationale, it limited it to those rare circumstances where a party who motivated, but did not actually file, the vexatious action might be held liable. Paradoxically, under Wolfe's reasoning, the person or entity who actually 15r,filed the vexatious action would have absolute immunity because the All of the complaint was an act done in a judicial proceeding. There is no pi • tification for that distinction and, while the Wolfe majority relies on,OlsonTsupra, that was not the rationale of the Second District's decision. The Wolfe majority opinion is based aim e !rely on one short phrase xfrom the Levin decision (which was subset ent y quoted in Echevarria) to the effect that any act occurring durin a j vial proceeding is absolutely privileged. However, neither Levin nor v addressed a malicious prosecution claim in which the initiation of t ve ious litigation is the wrong itself. And neither opinion provides a b conclude that the Florida Supreme Court would choose to deviate fro e overwhelming weight of authority in this country on this issue. The Fl 'reme Court has recognized the common law origins of both the litigatt privilege and the malicious prosecution cause of action; legal principles which have comfortably coexisted for hundreds of years. In fact, the Supreme Court applied them, without conflict, in Fisher v. Payne, supra. 33 EFTA02776214 While the Supreme Court has obviously accepted the argument that potentially tortious conduct occurring during litigation is entitled to absolute immunity, that is not the same as a conclusion that the malicious initiation of litigation should also be immune. As noted in an early edition of Prosser's treatise: There is no policy in favor of vexatious suits known to be groundless, which are a real and often a serious injury; and the heavy burden of proof upon the plaintiff, to establish both lack of probable- use, and an improper purpose, should afford sufficient protection to t e bona fide litigant and adequate safeguard against a series actio Prosser, Torts, 886 (1941), quoted in Rainier's Da Raritan Valley Farms, 117 A.2d 889, 896 (N.J. 1995). In Wolfe, which was a case broutx_ gaifist attorneys, the majority also relied on the fact that there were othercremedies" available to the plaintiffs, c ,including "the discipline oft , the bar association and the state," quoting OLevin, supra, 639 So.2d 60 -09. However, those remedies do not provide any Il.adequate remedy to under the circumstances of this case. The Trial Court's Order Is Based on Erroneous Reasoning - Taut., the trial court apparently misunderstood the fundamental basis for a malicious prosecution action. The trial court stated that in this 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." But the core of a malicious prosecution claim is not the action of an attorney drafting a complaint; instead, it is 34 EFTA02776215 the action of a party who in the first instance causes the attorney to draft the complaint. When a party maliciously initiates a groundless lawsuit, whether pm se or through an attorney, that party's conduct, knowledge and intent on its own, can provide the basis for the tort of malicious prosecution. That has been the nature of that common law tort for hundreds of years. The trial court's analy ems to create an absolute defense of attorney participation, which has n the law. The trial court also stated "the cases cited by Ed ved malicious prosecution claims stemming from actions filed by a themselves [i.e., m se actions], not counsel." This is simply unt stake that by itself justifies reversal. The trial court was m apparently e to cases such as Olson, supra,\ 6S, which did involve se actions. B the trial court inexplicably overlooked Vnumerous cases that Edwar i allowing malicious prosecution claims to proceed against either the ttor or the person hiring the attorney. See Motion for Reconsi n at 2-9 (collecting numerous authorities); see, e.g., Keys v. Chr s Credit Corp., 303 Md. 397, 407, 494 A.2d 200, 205 (1985) (allow ious prosecution suit to move forward against both Chrysler Credit Corpo on and its attorneys); Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, NA., 892 P.2d 230, 241 (Colo. 1995) ("an attorney [w]hile fulfilling his obligation to his client, [ ] is liable for injuries to third parties . . . when his conduct is fraudulent or malicious" (internal quotation omitted)); Simms v. Seaman, 308 35 EFTA02776216 Conn. 523, 541, 69 A.3d 880, 890 (2013) ("This court also has determined that absolute immunity [i.e., litigation privilege] does not bar claims against attorneys for . . . malicious prosecution"). Here, has not filed suit against Epstein's attorneys, but solely against Epstein — the wrongdoer who maliciously initiated a lawsuit ut any basis. This is consistent with law throughout the country, whic s the tort of malicious prosecution for "the wrongful initiation of proceedings." Restatement (Second) of Torts § 587, cmt. (a) (e added). See generally Restatement (Second) of Torts § 674 to 68 bin, the tort of malicious \ prosecution).7 The trial court's ruling granti ary judgment against should be reversed, so that Edwards ue his malicious prosecution claim against ' The trial court's o [the] malicious pros judicial pro g the trial co "some rel the tri Co was m als riefly states that "all of the allegations made in . . . claim[s] are of acts occurring during the course of the anji bear some relation to the proceeding." To the extent that merely stating that Epstein's act in initiating the lawsuit bears t that lawsuit, that trial court was just recounting a tautal was trying to go further than that and assert that pertained only to actions after the filing of the lawsuit, the trial court curate. The malicious prosecution Counterclaim was based on the initiation of the lawsuit. See, a, Counterclaim, ("Epstein filed civil claims a ai s . . . for the sole purpose of further attempting to intimidate . ...") (R2:332); ("Epstein acted purely out of malice towards . in filing his unsupported and unsupportable claims.") (R2:333); and ("Indicative of his total disregard for the lack of any predicate for his claims, Epstein ignored the statutory requirement for written notice prior to the initiation of a civil theft claim [in his lawsuit].") (R2:333). 36 EFTA02776217 Epstein. Doing so will not open any litigation floodgates, as the experience both in this state and other states amply demonstrates. The elements of the tort of malicious prosecution are themselves exceedingly demanding. The Nebraska Supreme Court recently explained how this protection operates: [B]ecause the elements of the tort [of malicious prosecution} difficult to prove, it is unnecessary to grant . . . absolute [lit Thon privilege. [T]here [is] a kind of qualified immunity bpi t the elements of the tort. Indeed, all those who instigate litigaf n a given partial protection by the rules that require a plainti claiming malicious prosecution to show improper purpose, a lack -'of probable cause for the suit or prosecution, and other elements. These elements effectively act as and could be analogized to the defamation defense of qualified or conditional privilege, which protects speakers in certain situations, but is lost if the speaker abuses it. . . . We conclude that absolute [litigation] privilege does not bar an action for malicious prosecution. McKinney v. Okoye, 282 Neb. 880, 889, 804-06 N.W.2d 571, 577-79 (2011). While the elements ( of a malicious prosecution claim are onerous, and essentially grant a qualified -immunity in all but the most extreme circumstances, extreme circu tanc exist here — as could prove if allowed to go to \ trial. Boilt w to its essence, this case involves a wealthy sex offender using his v.5% urces to launch malicious litigation solely to prevent an attorney from pursuing legitimate claims for the victims. If his intimidating action is upheld — and upheld merely because he was able to pay for a duly-licensed attorney to file his meritless lawsuit — then no doubt many other persons of means will follow this path. They will know that so long as they can find and pay for an attorney to file 37 EFTA02776218 the lawsuit, they will have impunity from any meaningful recourse from the victims. The need to preserve the viability of claims for malicious prosecution is highlighted by the circumstances of this case. Without that remedy available, people with the vast resources of Epstein can file lawsuits with impuni owing that no matter how baseless his allegations, how malicious his and how much damage he purposely inflicts regardless of what he f es, o hat he alleges, he is absolutely immune from any recourse from hi s. Such a result would mean not only that people of limited resource e victimized, but the court system would be as well, as it would be s ned with lawsuits having absolutely A , no legitimate basis or purpose. Sanctions such as § 5 a. Stat., which only authorize an award of attorney's fees, will not rye an adequate deterrent for those with substantial resources like Epstei orney's fees only compensate one specific out-of-pocket Oloss to the vi of a malicious lawsuit. Such sanctions do not address other S losses t such ai , economic harm, damage to reputation, and the psychological trauma that ictims of such suits suffer from simple initiation of the lawsuit, inevitably results from being forced to defend against meritless unnecessary litigation. 38 EFTA02776219 The tort of malicious prosecution exists precisely to provide compensation for such losses. That is why the tort is well-recognized in the Restatement (Second) of Torts and case law throughout this country. In England, where the prevailing party is automatically entitled to fees and costs, the courts concluded hundreds of years ago, and still hold, that the malicious prosecution cause of action essary both to deter wrongful litigation and, if deterrence fails, to c to for the O damages which fees and costs cannot remedy. lOne final point deserves mention. If affirmed • ision below will create a remarkable anomaly in Florida law: egregi C s n net worthy of sanction by sis , ' icmeans of punitive damages is somehow t e s me time, deserving of absolute immunity. Recall that the trial court al e to amend his Complaint to add a claim for punitive damages, finding that had evidence demonstrating that Epstein had acted "in an outrageous manner or with fraud, malice, wantonness ression." See Arab Termite & Pest Control of Florida, Inc. v. Jenkin 9 So.2d 1039, 1041 (Fla. 1982). But after the unexpected arrival of the e decision, the trial court then concluded that Epstein's conduct was worthy immunity due to the litigation privilege. It would be a remarkable conclusion that even malicious conduct committed in an outrageous manner is somehow deserving of protection. An opinion reversing the summary judgment in the narrow circumstances present here would 39 EFTA02776220 preserve the ancient and useful cause of action of malicious prosecution, which serves to deter these kinds of meritless lawsuits and to conserve scarce judicial resources. Even more fundamentally, it would be inappropriate for this Court to essentially eliminate a long-established cause of action. Such a drastic change to the common law should only be attempted by the Supreme Court or the "legislature. Nothing indicates that such a radical action is warranted by this O CONCLUSION For all these reasons, this Court should fo the overwhelming weight of c e jits, authority across this country, as well as wit 'It s e, and hold that the litigation 1/46 ill yprivilege does not bar a claim fo • i s prosecution. Accordingly, the Judgment of the Circuit Court d bt reversed and the cause remanded for further proceedings. 1/4 ) r ic k + 40 EFTA02776221 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 December 30, 2014. /kbt William B. M, Esq. SEARCY DENNY SCAROLA A BARNHART & SHIPLEY 2139 Palm Beach Lakes West Palm Beach, FL wbk@searcylaw.co and BURLINGTO Courthouse 444 Wes West (5 00 for Appellant LAppellateLaw.com FLAppellateLaw.com ch, CKENBACH, P.A. Suite 350 Avenue FL 33401 By: /s/ PHILIP M. BURLINGTON Florida Bar No. 285862 41 EFTA02776222 CERTIFICATE OF TYPE SIZE & STYLE Appellant hereby certifies that the type size and style of the Initial Brief of Appellant is Times New Roman l4pt. /s/ Philip M. Burlington PHILIP M. BURLINGl Florida Bar No. 28 86 EFTA02776223 SERVICE LIST v. Epstein Case No. 4D14-2282 John Berane Es . AUSLEY & P.O. Box 391 Tallahassee, FL 32302 jberanek®ausley.com csullivan@ausley.com Attorneys for Jeffrey Epstein Fred Haddad, Esq. FRED HADDAD, P.A. 1 Financial Plaza, Ste. 2612 Fort Lauderdale, FL 33301 haddadfm@aol.com Attorneys for Jeffrey Epstein Mark Nurik, Esq. LAW OFFICES OF MARC S. 1 E. Broward Blvd., Ste. 700 Ft. Lauderdale, FL 33301 ( 1/4 marc@nuriklaw.com Attorneys for Scott RothsteiNs 1, W. Chester Bre r, Jr. Esq. W. CHESTER WER, JR., P.A. 250 S. AUS A ., Ste. 1400 West Pal FL 33401 wcbla m wcbcg® . corn Attorneys for Jeffrey Epstein 43 Jack Goldberger, Esq. ATTERBURY, GOLDBERGER & WEISS, P.A. 250 So. Australian Ave., 4 West Palm Beach, FL jgoldberger@agwpa. Attorneys for Je Ep tein Tonja Hadda man, Esq. TONJ 'AD, P.A. 315 7 eet., Ste. 301 F dale, FL 33301 njahaddad.com @tonjahaddad.com orneys for Jeffrey Epstein J. , Esq. JAFFE, NVEISSING, FISTOS & LEHRMAN, P.L. 425 N. Andrews Ave., Ste. 2 Fort Lauderdale, FL 33301 brad®pathtojustice.com Attorneys for Defendant EFTA02776224