EFTA01193956.pdf

Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... 2014 WL 5858453 (Fla•APP• 4 Dist.) (Appellate Brief) District Court of Appeal of Florida, Fourth District. Stephen FISCHER, Appellant, v. Richard DEBRINCAT and Jason Dehrincat, Appellees. No. 4D14-1855. September 19, 2014. LT Case No.: 5o2oo9CAos5835XXXXMB Appellant's Initial Brief Scott, Harris, Bryan, Barra & Jorgensen, P.A., 4400 Pga Boulevard, Suite 603, Palm Beach Gardens, Florida 33410, Tele hone No: 561 624-3900, Facsimile No: (561) 624-3533, Email: Email: Email: , Email: John M. Jorgensen, Florida Bar No. 348112, S. Brian Bull, Florida Bar No: 363560, for appellant. *I TABLE OF CONTENTS TABLE OF CITATIONS ii PREFACE iii STATEMENT OF THE CASE AND FACTS iv I. STATEMENT OF THE FACTS iv II. STATEMENT OF THE CASE iv SUMMARY OF ARGUMENT vii STANDARD OF REVIEW 1 ARGUMENT 2 I. THE LITIGATION PRIVILEGE SHOULD NOT ACT TO BAR A CLAIM FOR MALICIOUS 2 PROSECUTION CONCLUSION CERTIFICATE OF SERVICE 12 CERTIFICATE OF FONT COMPLIANCE 12 *ii TABLE OF CITATIONS Cases: WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01193956  Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1218 (Fla. 1986) 2, 4, 6 Ecehvarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007) 4, 5 Eco-Tradition, LLC v. Pennzoil-Quaker State Co., 137 So.3d 495 (Fla. 4th DCA 2014) Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance 4, 5 Co., 639 So.2d 606, 607 (Fla. 1994) Myers .v Hodges, 44 So. 357 (Fla. 1907) 3 Rushing v. Bosse, 652 So.2d 869, 874 (Fla. 4th DCA 1995) 2 Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013) vi, 4-9 Other Authorities: Florida Standard Jury Instruction 406.2 Summary of Claims 7 Florida Standard Jury Instruction 406.4 Probable Cause 8 Florida Standard Jury Instruction 406.6 Instituting or Continuing a Proceeding 8 Florida Standard Jury Instruction 406.8 Issues on Claim 8 NH PREFACE All citations to the record will be referred to in this brief as "R. ". All citations will be to the exact page of the document contained within the Record unless reference is made to the entirety of the document. *iv STATEMENT OF THE CASE AND FACTS I. STATEMENT OF THE FACTS In November 2007 Richard DeBrincat and Jason DeBrincat initiated a civil lawsuit in the Fifteenth Judicial Circuit with the style of the case DeBrincat v. Fischer, Case No. 502007CA021107XXXXMBAA ("Original Proceeding"). (R.I,187) On October 9, 2008 Richard DeBrincat and Jason DeBrincat added Stephen Fischer as a party defendant in the Original Proceeding by including him in the Second Amended Complaint. (R.1.86) In the Original Proceeding Stephen Fischer was sued for defamation, defamation per se, tortious interference and conspiracy. (R.I.86) In the Original Proceeding Richard DeBrincat and Jason DeBrincat filed a Notice of Dropping Parties dismissing Stephen Fischer (R.2,188) II. STATEMENT OF THE CASE On May 4, 2009 Stephen Fischer filed a complaint seeking damages for malicious prosecution against Richard DeBrincat and Jason DeBrincat. (R.1-86). In the Complaint Stephen Fischer alleged: WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA01193957  Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... (I) The commencement of the Original Proceeding against Stephen Fischer (R.1); (2) Richard DeBrincat and Jason DeBrincat were the legal cause of the Original Proceeding against Stephen Fischer *v who was a defendant in the Original Proceeding (R.1); (3) The bona fide termination of the Original Proceeding in favor of Stephen Fischer (R.2); (4) The complete absence of probable cause for the Original Proceeding against Stephen Fischer (R.2); (5) The presence of malice (R.2); and (6) Damage as a result of the malicious prosecution of the Original Proceeding (R.2). On May 26, Richard DeBrincat and Jason DeBrincat served an answer. (R.90-1). On June I, 2010 Richard DeBrincat and Jason DeBrincat served an amended answer and affirmative defenses. (R.137-9). On September 17, 2013 Richard DeBrincat and Jason DeBrincat served a second amended answer and affirmative defenses. (R.175.7). On September 25, 2013 Richard DeBrincat and Jason DeBrincat served a motion for summary judgment. (R.178-80). In the motion Richard DeBrincat and Jason DeBrincat acknowledge that they commenced the Original Proceedings, that they later added Stephen Fischer as a defendant, and that they subsequently dropped Stephen Fischer as a defendant. (8.179) In the second amended answer Richard DeBrincat and Jason DeBrincat admitted that they were the legal cause of the *vi Original Proceeding where Stephen Fischer was sued for defamation, defamation per se, tortious interference and conspiracy. The sole issue presented in the motion for summary judgment was whether the recent Third District case of Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013) precludes Stephen Fischer from pursuing a claim for malicious prosecution against Richard DeBrincat and Jason DeBrincat through the application of the litigation privilege. (R.179). In the motion Richard DeBrincat and Jason DeBrincat did not dispute any of the allegations contained in the Complaint. (R.178.80). The trial court granted summary judgment in favor of Richard DeBrincat and Jason DeBrincat. (R.192). On April 22, 2014 the trial court entered a final judgment in favor of Richard DeBrincat and Jason DeBrincat. (R.207-8). On May 20, 2014 Stephen Fisher filed a Notice of Appeal. (R.209-12) *vii SUMMARY OF ARGUMENT Stephen Fischer alleged all of the elements necessary to establish a cause of action for malicious prosecution. The trial court improperly granted summary judgment based solely upon the litigation privilege. The litigation privilege should not bar a cause of action for malicious prosecution because the tort is based upon the unfounded prior civil proceeding and not the acts taken in the course of that proceeding. Malicious prosecution is a common law tort that has a long history. It is not the function of the trial court or an intermediate appellate court to abrogate a common law cause of action or modify its elements. If the decision of the trial court is upheld, then there will no longer be a cause of action for malicious prosecution in the State of Florida for the commencement or continuation of an unfounded civil proceeding. *1 STANDARD OF REVIEW The summary judgment poses a pure question of law as to whether the litigation privilege precludes an action for malicious prosecution by a party defendant that was added to a prior civil judicial proceeding. The standard of review of a summary WestlawNext' © 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01193958  Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... judgment posing pure questions of law is de novo. Eco-Tradition, LLC v. Pennzoil-Quaker State Co., 137 So.3d 495 (Fla. 4th DCA 2014). Further, whether Stephen Fischer stated a cause of action for malicious prosecution and/or whether the litigation privilege precluded the malicious prosecution claim against Richard DeBrincat and Jason DeBrincat is a pure question of law reviewed de novo. *2 ARGUMENT I. THE LITIGATION PRIVILEGE SHOULD NOT ACT TO BAR A CLAIM FOR MALICIOUS PROSECUTION The decision of the trial court effectively eliminates the cause of action for malicious prosecution. An action for malicious prosecution has long been recognized in Florida. A victim of an unfounded judicial proceeding may maintain an action for malicious prosecution based on the commencement or continuation of that unfounded proceeding. Rushing v. Bosse, 652 So.2d 869, 874 (Fla. 4th DCA 1995). The cause of action protects the right of a defendant to be free from the malicious prosecution of an unfounded lawsuit. The cause of action exists for the commencement or continuation of an unfounded criminal or civil proceeding. The Florida Supreme Court has held that to prevail in a malicious prosecution suit a plaintiff must prove: (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 proceeding. (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. Bums v. GCC Beverages, Inc., 502 So.2d 1217, 1218 (Fla. 1986). As set forth in the complaint Stephen Fischer alleged all six elements necessary *3 to prevail in a malicious prosecution action. Richard DeBrincat and Jason DeBrincat commenced the prior Original Proceeding against Stephen Fischer. Stephen Fischer was named as a defendant and served with the Second Amended Complaint. This constitutes a commencement of an original civil proceeding against Stephen Fischer. Richard DeBrincat and Jason DeBrincat continued the Original proceeding against Stephen Fischer after he was added as a defendant. This constitutes the continuation of an original civil proceeding against Stephen Fischer. Richard DeBrincat and Jason DeBrincat were the legal causation of the Original Proceeding against Stephen Fischer. Stephen Fischer alleged the bona fide termination of the Original Proceeding in his favor. He alleged the absence of probable cause for the Original Proceeding, and the presence of malice on the part of Richard DeBrincat and Jason DeBrincat, and damages as a result. The sole issue before this Court is whether the litigation privilege, which protects certain actions taken in the course of and related to a judicial proceeding, precludes a claim for malicious prosecution when an essential element of the claim requires an unfounded commencement or continuation of a prior judicial proceeding. The litigation privilege has traditionally provided legal immunity for certain actions that occur in judicial proceedings. Myers .v Hodges, 44 So. 357 (Fla. 1907). Traditionally the litigation privilege protected defamatory statements and perjury *4 made in connection within a judicial proceedings. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co., 639 So.2d 606,607 (Fla. 1994). In Levin the Florida Supreme Court extended the litigation privilege to all other acts occurring during the course of judicial proceedings so long as the act has some relationship to the proceedings. The WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA01193959  Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... Florida Supreme Court did not abrogate the cause of action for malicious prosecution or change any of its elements. In Ecehvarria, McCalla, Raymcr. Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007) the Florida Supreme Court clarified that the litigation privilege applies across the board to actions in Florida to afford absolute immunity to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding. The Florida Supreme Court still did not abrogate the cause of action for malicious prosecution or change any of its elements. It is also important to note the Florida Supreme Court held that the litigation privilege applied to the actions in the judicial proceeding and not the unfounded judicial proceeding itself, which is the basis for the tort for malicious prosecution. The Florida Supreme Court has not receded from its decision in Bums and it is still binding on this Court. Richard DeBrincat and Jason DeBrincat argued that pursuant to the recent decision of the Third District in Wolfe v.Foreman, 128 So.3d 67 (Fla. 3d DCA 2013) the litigation privilege afforded absolute immunity for the commencement and/or *5 continuance of the prior Original Proceeding against Stephen Fischer since the act of filing the operative complaint and continuance of the proceedings against Stephen Fischer occurred during the course of a judicial proceeding. The trial court agreed and entered summary judgment. In Wolfe, the partners in a limited liability company initially engaged in litigation in Monroe County over control of their company. That litigation was ultimately settled. One of the partners then sued the other partner in the United States District Court for the Southern District of Florida. The partner's New York counsel retained Miami attorneys for local counsel. Two months after the Miami lawyers filed the complaint, they learned of the prior Monroe County lawsuit and immediately notified their client that they could not proceed with the claims. Thereafter, they withdrew as counsel. After the federal action was dismissed, the Miami lawyers were sued for abuse of process and malicious prosecution. The acts complained of in Wolfe were the actual filing of the complaint and the brief prosecution of the case by the Miami lawyers. The Third District held that since these acts occurred during and were related to the judicial proceedings, they were protected by the litigation privilege. In applying Levin and Echevarria to the facts of Wolfe, the Third District stated: It is difficult to imagine any act that would fit more firmly within *6 the parameters of Levin and Echevarria than the actual filing of a complaint. The filing of a complaint, which initiates the judicial proceedings, obviously `occurs during the course of a judicial proceeding' and 'relates to the proceeding.' Although the filing of a complaint obviously occurs during a judicial proceeding the Third District rendered an incorrect decision as it is the unfounded proceeding, not a specific act that occurs during the proceeding that serves as the basis for malicious prosecution. The Third District's decision effectively eliminates malicious prosecution as a cause of action for any civil judicial proceeding. Since the commencement of an original civil proceeding occurs with the filing of a complaint, there can be no cause of action for malicious prosecution for the commencement or continuation of a civil proceeding if the litigation privilege provides absolute immunity for the filing of a complaint. This is not and cannot be the law in Florida. The decision in Wolfe effectively conflicts with the decision in Burns, which lists as an element of malicious prosecution the commencement of a civil proceeding. Both the Wolfe decision and the trial court's decision effectively turns centuries of jurisprudence on its head through the expansion of the litigation privilege as an absolute bar to an action for malicious prosecution resulting from an unfounded civil proceeding. If the decisions stand, no longer can a litigant bring an action for *7 malicious prosecution resulting from a malicious, unfounded lawsuit. Only the Florida Supreme Court can recede from prior precedent. The Florida Supreme Court has not eliminated the tort of malicious prosecution nor has it changed the elements necessary to establish malicious prosecution. Since the tort implicitly involves a commencement or continuation of a judicial proceeding it cannot be said that the litigation privilege can be invoked to defeat the tort. The tort by its very nature includes as an element not only the commencement or continuation of an unfounded civil proceeding but the bona fide termination of that proceeding in favor of the claimant. Further, the decision of Wolfe expressly conflicts with jury instructions approved by the Florida Supreme Court for malicious prosecution. Specifically the relevant jury instructions fora claim of malicious prosecution are as follows: WestlawNext' © 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA01193960  Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... 406.2 SUMMARY OF CLAIMS The claims [and defenses] in this case are as follows. (Claimant) claims that (defendant) maliciously and without probable cause [filed] [and] [continued] (describe the claim or proceeding) against [him] [her] [it] which later terminated in favor of (claimant) and which caused [him] [her] [it] harm. (Defendant) denies that claim [and also claims that [he] [she] [it] was acting on the advice of [his] [her] [its] lawyer]. [Additionally (describe any other affirmative defenses).] The parties must prove all claims [and defenses] by the greater *8 weight of the evidence. I will now define some of the terms you will use in deciding this case. (Emphasis Added). 406.4 PROBABLE CAUSE Probable cause means that at the time of [instituting] [or] [continuing] a [criminal] [civil] proceeding against another, the facts and circumstances known to [(defendant)] [(other person)] were sufficiently strong to support a reasonable belief that (claimant) [had committed a criminal offense] [the [claim] [proceeding] was supported by existing facts]. (Emphasis Added). 406.6 INSTITUTING OR CONTINUING A PROCEEDING One is regarded as having [instituted] [continued] a [criminal] [civil] proceeding against another if the proceeding resulted directly and in natural and continuous sequence from his or her actions, so that it reasonably can be said that, but for his or her actions, the proceeding would not have been [instituted] [continued]. [One is not regarded as having [instituted] [continued] a criminal proceeding against another if in good faith he or she made a full and fair disclosure of what he or she knew to the proper authorities and left the decision to [institute] [continue] the prosecution entirely to the judgment of the authorities.] (Emphasis Added). 406.8 ISSUES ON CLAIM The issues you must decide on (claimant's) claim against (defendant) are whether (defendant) maliciously and without probable cause [instituted] [or] [continued] a [criminal] [civil] proceeding against (claimant) which later terminated in favor of (claimant) and, if so, whether that action was a legal cause of [loss] [injury] [or] [damage] to (claimant). (Emphasis Added) As can be clearly seen from just a cursory review of the jury instructions, the holding in Wolfe contradicts the jury instructions. If Wolfe is to be followed then the *9 standard jury instructions for malicious prosecution need to be thrown out entirely as the institution and/or continuance of a civil proceeding is necessarily an act that occurs during and is related to the judicial civil proceedings. Further, the trial court erred in not limiting Wolfe to the facts of the case, which involved attorneys being sued for malicious prosecution. In Wolfe, the actual plaintiff in the original proceeding was not sued for malicious prosecution. Rather, his attorneys, the Miami lawyers, were. As stated in the Wolfe concurring opinion, since the Miami lawyers were unaware of the original proceeding filed in Monroe County, and since they also immediately withdrew when learning of it, they could not have acted with malice, nor could they have commenced the original proceeding without probable cause. For this reason alone, Wolfe should not have applied to the present action since defendants' prior counsel in the original proceeding had not been sued for malicious prosecution. If Wolfe is to apply at all to a claim for malicious prosecution, it should be limited to its WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA01193961  Haddad, Tonja 12/29/2014 For Educational Use Only Stephen FISCHER, Appellant, v. Richard DEBRINCAT and..., 2014 WL 5858453... rather unique facts of when an attorney is sued for malicious prosecution, especially when the attorney has no knowledge of the unfounded nature of the claim. Wolfe should not be extended to preclude all claims for malicious prosecution against a plaintiff in an original proceeding who pursued an unfounded claim maliciously and without probable cause. Further, the decision of the Third District in Wolfe improperly expands the *10 litigation privilege from "acts" taken within a judicial proceeding to the judicial proceeding itself. The litigation privilege was intended to provide a privilege for the acts taken to prosecute or defend an action in a judicial proceeding. However, a claim for malicious prosecution is not based upon actions taken during the judicial proceeding. The claim for malicious prosecution is based upon the unfounded judicial proceeding. In essence the tort is not an "act" within the proceeding but the proceeding itself. The tort is the commencement or continuation of an unfounded proceeding and not for the actions or conduct occurring during the proceeding. Although the litigation privilege provides absolute immunity for certain acts taken during the course of the judicial proceedings it does not provide an immunity for the unfounded "original proceeding" as the proceeding itself, not the actions taken during the proceeding, constitutes the basis for the tort. In essence the tort of malicious prosecution is not a claim that a defendant committed certain acts in the prior civil proceeding but is a claim for the unfounded civil proceeding either being maliciously commenced or continued without probable cause. *11 CONCLUSION If decision of the trial court is allowed to stand then the litigation privilege would act as an absolute bar to all claims of malicious prosecution for an unfounded civil proceeding. This is not the law in Florida. For this reason, this Court should reverse the decision of the trial court. End of Document C 2014 Thomson Reuters. No claim to original U.S. Government Works. WestlawNext © 2014 Thomson Reuters. 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