EFTA01199647.pdf

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BRADLEY J. EDWARDS, Appellant, -vs- CASE NO. 4D14-2282 JEFFREY EPSTEIN, Appellee. APPENDIX TO APPELLANT'S INITIAL BRIEF 1. Motion for Reconsideration dated February 6, 2014. Al-37 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. SEARCY DENNY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 and BURLINGTON & ROCICENBACH, P.A. 444 West Railroad Avenue, Ste. 350 West Palm Beach, FL 33401 Attorneys for Appellant By: /s/ Philip M. Burlington PHILIP M. BURLINGTON /kbt Florida Bar No. 285862 EFTA01199647  SERVICE LIST Edwards v. Epstein Case No. 4D14-2282 John Beranek, Esq. Jack Goldberger, Esq. AUSLEY & MCMULLEN ATTERBURY, GOLDBERGER P.O. Box 391 & WEISS, P.A. Tallahassee, FL 32302 250 So. Australian Ave., Ste. 1400 West Palm Beach, FL Attorneys for Jeffrey Epstein Attorneys for Jeffrey Epstein Fred Haddad, Esq. Tonja Haddad Coleman, Esq. FRED HADDAD, P.A. TONJA HADDAD, P.A. 1 Financial Plaza, Ste. 2612 315 SE 7th Street., Ste. 301 Fort Lauderdale, FL 33301 Fort Lauderdale, FL 33301 Attorneys for Jeffrey Epstein Attorneys for Jeffrey Epstein Mark Nurik, Esq. LAW OFFICES OF MARC S. NURIK Bradley J. Edwards, Esq. 1 E. Broward Blvd., Ste. 700 FARMER, JAH-E, WEISSING, Ft. Lauderdale, FL 33301 EDWARDS, FISTOS & LEHRMAN, P.L. 425 N. Andrews Ave., Ste. 2 Attorneys for Scott Rothstein Fort Lauderdale, FL 33301 W. Chester Brewer, Jr., Esq. Attorneys for Defendant Edwards W. CHESTER BREWER, JR., P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 Attorneys for Jeffrey Epstein EFTA01199648  IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXX/vIBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendant, COUNTER-PLAINTIFF BRADLEY EDWARDS' MOTION FOR RECONSIDERATION Counter-Plaintiff, BRADLEY EDWARDS (EDWARDS), moves this Honorable Court to reconsider the Court's announced intention to grant a summary judgment in favor of the Counter-Defendant, JEFFREY EPSTEIN (EPSTEIN), and in support of this motion would show: 1. The issue squarely presented by EPSTEIN'S Motion for Summary Judgment is whether a non-lawyer is protected from liability by 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 extorting a negotiating advantage in other civil litigation. 2. Prior to the decision of the Third District Court of Appeal in Wolfe v. Foreman, 128 So.3d 67 (2013), no reported decision in the State of Florida or in any other jurisdiction in the nation had ever extended the absolute immunity of the litigation privilege to bar a properly pled claim for malicious prosecution. Al EFTA01199649 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 2 of 13 As misinterpreted by the Third DCA, the litigation privilege would be converted from a tool to allow properly-filed litigation to move forward unimpeded into a license to deliberately file baseless litigation purely for purposes of harassment. If the Florida litigation privilege is interpreted to mean that even a maliciously filed lawsuit somehow becomes protected activity, then Florida will stand alone among all the states. Counsel have undertaken a broad survey of the laws and court decisions in fifty states and the District of Columbia. At this point, counsel have been unable to locate even a single precedent from another state that would support such an extreme result. On the other hand, many states have written opinions making clear that while conduct within a properly-filed lawsuit supported by probable cause may be protected, the litigation privilege (sometimes referred to as the "judicial privilege") does not give license to maliciously file or maintain a lawsuit that is known to have no factual or legal support. As a recent decision explains, "A vast number of other jurisdictions . . . hold that even where an absolute privilege bats an action for defamation based on statements made during a judicial proceeding, it does not bar an action for malicious prosecution." Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 250 (Ind. App. 2013). The cases supporting this fundamental proposition are legion, including (arranged in alphabetical order by state): Alaska -- Indus. Power & Lighting Corp. v. W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981) ("This [the litigation privilege] does not mean that [the defendant] may not maintain an action for malicious prosecution if the current litigation is terminated favorably to it, A2 EFTA01199650 Edwards adv. Epstein Case No.: 502009CA040800X.1OO(MBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 3 of 13 and if malice on the part of [the plaintiff] and lack of probable cause for the claim asserted are pleaded and proven."); Arizona -- Sierra Madre Dev., Inc. v. Via Entrada Townhouses Ass 'n, 20 Ariz. App. 550, 554, 514 P.2d 503, 507 (1973) ("We note that this [litigation] privilege is not unlimited. . . . [N]othing said herein is intended to affect the validity of any claim for relief based upon malicious prosecution or abuse of process. See Comment (a), Restatement of Torts, supra, § 587 California -- Hogen v. Valley Hosp., 147 Cal.App.3d 119, 195 Cal.Rptr. 5, 7 (1983) ("... the fact that a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case. The policy of encouraging free access to the courts that underlies the privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied." (internal citations omitted)). Colorado -- Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, N.A., 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)); A3 EFTA01199651 Edwards adv. Epstein Case No.: 502009CA0401300XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 4 of 13 Connecticut -- Simms v. Seaman, 308 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."). Delaware -- Nix v. Sawyer, 466 A.2d 407, 411 (Del.Super. 1983) ("any litigant seeking application of a `sham litigation' exception [to judicial privilege] would have to present an exceedingly strong factual showing in order to defeat operation of the privilege. . . . [T]he plaintiffs' burden in this respect is analogous to the requisite showing for a claim of malicious prosecution . . . ."); District of Columbia -- Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 346 (D.C. 2001) ("An attorney who makes false and defamatory statements to inveigle a client into filing a frivolous lawsuit risks . . . a malicious prosecution action by the party defamed, from which the judicial proceedings privilege will afford no protection.",) overruled on other grounds 3 A.3d 1132 (D.C. 2010); Hawaii — Kahala Royal Corp. v. Goodsill Anderson Quinn & Sigel, 113 Hawai'i 251, 268-269, 151 P.3d 732, 749-50 (Ha. 2007)("[A]bsolute privileges, such as the litigation privilege, should only be permitted in limited circumstances. Thus, we do not believe that a litigation privilege should apply to bar liability of an attorney in all circumstances. In Mehe, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230, 235 (Colo.1995), the Colorado Supreme [C]ourt noted that "an attorney is not liable to a non-client absent a finding of fraud or malicious conduct by the attorney." See also Baglini v. Lauletta, ... [338 N.J.Super. A4 EFTA01199652 Edwards adv. Epstein Case No.: 502.009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 5 of 13 282,] 768 A.2d 825, 833-34 (2001) ("The one tort excepted from the reach of the litigation privilege is malicious prosecution, or malicious use of process."). We believe such exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorney's duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party."); Idaho -- Taylor v. McNichols, 149 Idaho 826, 840-41, 243 P.3d 642, 656-57 (2010) ("Application of the litigation privilege varies across jurisdictions, but the common thread found throughout is the idea that an attorney acting within the law, in a legitimate effort to zealously advance the interests of his client, shall be protected from civil claims arising due to that zealous representation. An attorney engaging in malicious prosecution, which is necessarily pursued in bad faith, is not acting in a manner reasonably calculated to advance his client's interests, and an attorney engaging in fraud is likewise acting in a manner foreign to his duties as an attorney."); Indiana -- Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 250-51 (Ind. Ct. App. 2013), transfer denied, 2014 WL 223507 (Ind. Jan. 16, 2014) ("A vast number of other jurisdictions also hold that even where an absolute privilege bars an action for defamation based on statements made during a judicial proceeding, it does not bar an action for malicious prosecution. 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." (internal quotations omitted)). A5 EFTA01199653 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 6 of 13 Iowa -- Wilson v. Hayes, 464 N.W.2d 250, 261 (Iowa 1990) ("an attorney would only be liable if the attorney knowingly initiated or continued a suit for a clearly improper purpose." Louisiana -- Goldstein v. Serio, 496 So.2d 412, 415 (La App. 1986) ("Malicious prosecution, however, is not concerned with the statements made during a proceeding but rather with the intent of the parties in instituting the original proceeding. Therefore, we cannot hold that absolute privilege is an affirmative defense to a malicious prosecution action."). Maryland -- Keys v. Chrysler Credit Corp., 303 Md. 397, 407-08, 494 A.2d 200, 205 (1985) ("Thus, even the intentional and wrongful bringing or maintaining of litigation will not destroy the absolute privilege that attends the litigation, and a cause of action other than defamation must be employed to redress such a wrong. . . . The elements of the cause of action of malicious use of process are: 1. A prior civil proceeding was instituted by the defendant. 2. The proceeding was instituted without probable cause. 3. The proceeding was instituted with malice. 4. The proceeding terminated in favor of the plaintiff . . . We conclude the evidence was sufficient to permit the trier of fact to find the existence of all elements of this cause of action."). Mississippi -- McCorkle v. McCorkle, 811 So.2d 258, 266 (Miss.App.,2001) ("There is precedent indicating that the presence of malice prohibits the assertion of judicial privilege. . . . Because we find there is evidence in the record to support a finding of malice in the case at bar, . . . we do not find that Donald may assert judicial privilege and find no merit to this assignment of error." (internal citations omitted)). A6 EFTA01199654 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 7 of 13 Nebraska -- McKinney v. Okoye, 282 Neb. 880, 889, 804-06 N.W.2d 571, 577-79 (2011) ("[B]ecause the elements of the tort [of malicious prosecution] are difficult to prove, it is unnecessary to grant . . . absolute privilege. IT]here [is] a kind of qualified immunity built into the elements of the tort.' Indeed, `all those who instigate litigation are given partial protection by the rules that require a plaintiff 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 privilege does not bar an action for malicious prosecution."). New Jersey -- Dello Russo v. Nagel, 358 N.J. Super. 254, 266, 817 A.2d 426, 433 (App. Div. 2003) ("The litigation privilege is not absolute. For example, it does not insulate a litigant from liability for malicious prosecution."); New York -- Lacher v. Engel, 33 A.D.3d 10, 13, 817 N.Y.S.2d 37, 40 (N.Y. App. Div. 2006) ("[T]his absolute [litigation] privilege may be 'lost if abused.' More specifically, this Court held that the privilege is limited to statements which are not only pertinent to the subject matter of the lawsuit but are made 'in good faith and without malice.' (internal quotations omitted); Ohio -- Willis & Linnen Co., L.P.A. v. Linnen, 163 Ohio App.3d 400, 403, 837 N.E.2d 1263, 1265 - 1266 (Ohio App. 9 Dist.,2005) ("appellant asserts that his claims, abuse of process A7 EFTA01199655 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 8 of 13 and malicious prosecution, do not fall within the privilege. We agree that appellant's claims themselves are not barred by the doctrine of absolute privilege."). Oregon -- Mantia v. Hanson, 190 Or. App. 412, 429, 79 P.3d 404, 414 (2003) ("When is an absolute privilege not absolute? But at least with respect to the absolute privilege pertaining to participation in judicial and quasi-judicial proceedings, there is a ready answer: An actor's conduct is so egregious as to be deprived of the protections of the absolute privilege when that conduct satisfies the elements of wrongful initiation. See Restatement at § 587, comment a (absolute privilege does not apply to claim for wrongful initiation of civil proceedings/malicious prosecution)."); West Virginia -- Clark v. Druckman, 218 W. Va. 427, 435, 624 S.E.2d 864, 872 (2005) ("However, the litigation privilege does not apply to claims of malicious prosecution and fraud."). The principle that a malicious prosecution action is not barred by the litigation privilege is so widely-accepted that it has been explicitly recognized in the Restatement (Second) of Torts as conventional tort theory. The Restatement begins by noting the existence of a litigation privilege, stating, "A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding." Restatement (Second) of Torts § 587. However, as Comment (a) of A8 EFTA01199656 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 9 of 13 that section immediately explains, a malicious prosecution action is not covered by the privilege. The Comment explains: "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 without probable cause and for an improper purpose." Id. cmt. a (emphasis added). The cited provisions (i.e., §§ 674 to 680) are the provisions stating the tort of malicious prosecution. 3. Florida has long adhered to the universal recognition of malicious prosecution as an exception to the absolute litigation privilege. Indeed the Fifth District Court of Appeal in Wright v. Yurko, 446 So.2d 1162 (5 DCA 1984), applied the privilege to bar various claims for tortious conduct alleged to have occurred in the course of prior judicial proceedings, but the Court expressly excluded the malicious prosecution claim from that bar: The only private remedy in this context allowed or recognized is the ancient cause of action for malicious prosecution.* This tort has its own special elements and defenses. They are: (1) a criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action; (2) the proceeding was instigated by the defendant in the malicious prosecution action; (3) the proceeding has ended in favor of the plaintiff in the malicious prosecution; (4) the proceeding was instigated with malice; (5) without probable cause and A9 EFTA01199657 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 10 of 13 (6) resulted in damage to the plaintiff in the malicious prosecution action. Kalt v. Dollar Rent-A-Car, 422 So.2d 1031, 1032 (Fla. 3d DCA 1982). If all of these elements of malicious prosecution are properly pleaded in a complaint, the suit must be allowed to proceed. [Emphasis Added.] *W. Prosser, Law of Torts, §119 (4th ed. 1971); see Bencomo v. Morgan, 210 So.2d 236 (Fla. 3d DCA 1968); Leach v. Feinberg, 101 So.2d 52 (Fla. 3d DCA), cert. denied, 104 So.2d 596 (Fla. 1958); Wright v. Yurko, 440 So.2d at 1165. Attached as Appendix A. 4. This same position expressly recognizing that claims for malicious prosecution are outside the protection of the litigation privilege is reflected in the holding of the Fourth District Court of Appeal in Graham-Eckes Palm Beach Academy, Inc. v. Johnson, 573 So.2d 1007 (4 DCA 1991). There the Court affirmed a judgment on the pleadings on a counterclaim for intentional interference with a contract, but the Court specifically observed that the privilege did not extend to a claim for malicious prosecution: Appellant contends that the absolute privilege normally afforded 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). 5. Thus, both the Fourth and Fifth DCAs have each expressly ruled that while the absolute litigation privilege bars other tort claims, "the ancient cause of action for malicious prosecution" remains a viable means to address the injuries caused by baseless and purely vexatious litigation. A10 EFTA01199658 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 11 of 13 6. The compelling public policy considerations that support the need to recognize this "ancient cause of action" are succinctly summarized in the Comments to Restatement (Second) of Torts §676 (1977), copy attached as Appendix C. 7. EPSTEIN makes repeated reference to "the trilogy of cases" that includes not only Wolfe, but also Levin. Middlebrooks. Moves & Mitchell, P.A. v. U.S. Fire Insurance Co., 639 So.2d 606 (Fla. 1994) and Echevarria. etal v. Cole, 950 So.2d 380 (2007). In doing so, EPSTEIN makes the same fatal error that misled the Third DCA. The general holdings of Levin Middlebrooks and Echevarria which addressed and barred claims other than malicious prosecution were extended by the Third DCA to the sole exception to the litigation privilege without any recognition of or analysis of the existence of or basis for the exception. 8. Confronted with the issue of whether malicious prosecution claims are an exception to the litigation privilege, the Fourth and Fifth DCAs have clearly recognized that they are an exception. Wolfe is wrongly decided, and on the authority of Wright v. Yurko, this Court has the discretion to reject the erroneous opinion of the Third DCA. On the authority of the Fourth DCA's opinion in Graham-Eckes, this Court is compelled to reject the erroneous opinion of the Third DCA. WHEREFORE, EDWARDS respectfully requests that this Honorable Court reconsider its announced position that it is obliged to follow Wolfe. This Court is not compelled to follow Wolfe and to grant a summary judgment that would immunize EPSTEIN's blatant attempt at extortion through the malicious misuse of the civil justice system. Fourth DCA precedent All EFTA01199659 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 12 of 13 requires the continued recognition of the ancient cause of action of malicious prosecution and denial of EPSTEIN's Motion for Summary Judgment. I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this ary, 2014. JACK S A Florid o.: 169440 Atto ey Mail(s): and E-Mail: ondary E-Mail(s): earcy Denney Scarola Barnhart 8c Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone Fax: Attorneys for Bradley Edwards A12 EFTA01199660 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 13 of 13 COUNSEL LIST William Chester Brewer, Esquire Fort Lauderdale. FL 3 301 Pho 250 S Australian Avenue, Suite 1400 Fax: West Palm Beach. FL 33401 Attorneys for Scott Rothstein Phone: Fax: Ton'a Haddad Coleco Esquire Attorneys for Jeffrey Epstein Jack A. Goldberger, Esquire Tonja Haddad, P.A. 315 SE 7th Street, Suite 301 tter ury, rger &Weiss, P.A. Fort Lauderdale, FL 33301 250 Australian Avenue South, Suite 1400 Phone: West Palm Beach FL 33401 Fax Pho Attorneys for Jeffrey Epstein Fax Attorneys for Jeffrey Epstein Bradley6,d).yards, uire Farmer, Jaffe, Weissing, Edwards, Fistos & 425 North Andrews Avenue, Suite 2 Fort Lauderdale FL 33301 Phone F Fred I laddad, Esquire neFinancial Plaza, State 612 Fort Lauderdale, FL 33394 Phone: Fax: Attorneys for Jeffrey Epstein Marc S. Nurik, Es uire Law Offices of Marc S. Nurik One E Broward Blvd., Suite 700 A13 EFTA01199661 Wright v. Yurko, 448 So.2d 1182 (1984) and jury, negated essential element for 446 So.2d 1162 malicious prosecution claim against the District Court of Appeal of Florida, attorney, namely, filing of challenged action Fifth District. without probable cause. Benjamin E. WRIGHT, Appellant, Affirmed in part, reversed in part and v. remanded. Albert YURKO, Leon C. Dorman, Lila Dorman and Barnette Greene, Dauksch, J., concurred in part, dissented in Appellees. part and filed opinion. Nos. 82-1438, 82-1497. 1 March 1,5, 1984. West Headnotes (12) Doctor appealed from judgments of the Circuit Court, Orange County, Victor O. Wehle, J., denying him relief in malicious prosecution cases brought against medical In Libel and Slander malpractice plaintiffs, their expert witness, i.-Judicial - Proceedings and their attorney. The District Court of 237Libel and Slander Appeal, Sharp, J., held that: (1) counts in 237I1Privileged Communications, and Malice both lawsuits attempting to allege cause of Therein 237k35Absolute Privilege action in defamation, conspiracy to commit 237Ic38Judicial Proceedings defamation, or perjury with respect to 237k38(I)In General statements made by defendants herein in Parties, witnesses, and counsel are course of prior judicial proceedings in accorded absolute immunity as to medical malpractice action were insufficient civil liability with regard to what is as matter of law, such statements being said or written in course of a lawsuit, accorded absolute immunity; (2) complaint providing the statements are relevant as against medical malpractice plaintiffs and to the litigation. their expert witness sufficiently pleaded required elements of malicious prosecution 5 Cases that cite this headnote and, hence, was improperly dismissed; (3) affidavit of defendant's attorney in support of summary judgment was in proper form, indicating by nature of statements therein that it was based on personal belief and 121 Libel and Slander knowledge; and (4) that affidavit, showing c..--Judicial Proceedings that attorney reasonably researched and investigated medical malpractice case and 237Libel and Slander 23711Privikged Communications, and Malice had tenable theory to present to the court westta•NNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 A14 APPEM0IX A EFTA01199662 Wright v. York°, 448 So.2d 1182 (1984) Therein 237k35Absolute Privilege 237k38Judicial Proceedings 237k38(I)ln General 141 Conspiracy Reason for rule according parties, a.Nature and Elements in General witnesses, and counsel absolute 91Conspiracy immunity from civil liability for 91ICivil Liability statements made in course of lawsuit 911(A)Acts Constituting Conspiracy and Liability Therefor is that, although it may bar recovery 91kINature end Elements in General for bona fide injuries, chilling effect 91k1.1In General (Formerly 9Ikl) on free testimony and access to courts if such suits were allowed Actionable conspiracy requires would severely hamper adversary actionable underlying tort or wrong; system. act which does not constitute basis for cause of action against one 15 Cases that cite this headnote person cannot be made basis for civil action for conspiracy. 15 Cases that cite this headnote 131 Libel and Slander ceNature and Elements of Defamation in General Torts 151 Conspiracy 4?-Perjury or False Testimony id-Conspiracy to Injure in Person or Reputation 237Libel and Slander 237IWords and Acts Actionable, and Liability Libel and Slander Therefor c-Evidence 2371c1Nature and Elements ofDefamation in General Torts 379Torts 379111Tortious Interference c-Perjury or False Testimony 379111(D)Obstruction of or Interference with Legal Remedies; Spoliation 91Conspiracy 379k307Pajury or False Testimony 91lCivil Liability (Formerly 379k13) 911(A)Acts Constituting Conspiracy and Liability Therefor Remedies for perjury, slander, and 9Ik7Conspiracy to Injure in Person or Reputation 237Libel and Slander the like committed during judicial 237IIPrivileged Communications, and Malice proceedings are left to discipline of Therein the courts, bar association, and the 237k35Absolute Privilege 2.37k38Judkial Proceedings State. 237k38(4)Evidence 379Torts 379111Tortious Interference 7 Cases that cite this headnote 379111(D)Obstruction of or Interference with Legal Remedies; Spoliation 379k307Pajury or False Testimony (Formerly 379k13) WestlavNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 A15 EFTA01199663 Wright v. Yurko, 448 So.2d 1182 (1984) and with malice and intent to injure Plaintiffs and their expert witness doctor and that it concluded in could not be held liable for doctor's favor, resulting in special defamation, conspiracy to commit and general damages to him, defamation, or perjury with respect together with allegation that to statements made by them in plaintiffs' expert witness conspired course of judicial proceedings in with plaintiffs to bring the suit, medical malpractice action. stated cause of action for malicious prosecution. 14 Cases that cite this headnote 2 Cases that cite this headnote Malicious Prosecution ‘..—Requisites and Sufficiency in Isl Judgment General aersonal Knowledge or Belief of 249Malicious Prosecution Affiant 249VActions 249k46Pleading 228.ludgment 249k47Requisites and Sufficiency in General 228VOn Motion or Summary Proceeding 228k I82Motion or Other Application If all elements of malicious 228k185.lAffidavits, Form, Requisites and Execution of prosecution are properly pleaded in a 228k185.1(3)Personal Knowledge or Belief of complaint, suit must be allowed to Affiant proceed; however, if one element is Affidavit of attorney, who not sufficiently pleaded, complaint unsuccessfully represented parties in should be dismissed. medical malpractice action, in support of summary judgment in 1 Cases that cite this headnote subsequent malicious prosecution action against him was in proper form, though omitting introductory statement that it was made based on 171 Malicious Prosecution personal belief and knowledge, :Requisites and Sufficiency in inasmuch as it was clear from General statements made in body of the affidavit with respect to 249Malicious Prosecution consultations with medical experts 249VActions and review of medical treatises that 249k46Pleading 249k47Requisites and Sufficiency in General they were based on defendant's own knowledge. West's F.S.A. RCP Allegations that medical malpractice Rules 1.510(e), 1.510 comment. suit was filed without probable cause NesttawNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 A16 EFTA01199664 Wright v. Yurko, 446 So.2d 1162 (1984) 2 Cases that cite this headnote known to him, in validity of the claim. 5 Cases that cite this headnote 191 Judgment ..,-Presumptions and Burden ofProof 228Judgment IIII Malicious Prosecution 228VOn Motion or Summary Proceeding 228k I 82Motion or Other Application ,—Probable Cause and Malice 2281c185Evidence in General 228k185(2)Presumptions and Burden ofProof 249Malicious Prosecution 249VActions Effect of defendant's motion for 249k64Weight and Sufficiency of Evidence 249k64(2)Probable Cause and Malice summary judgment in malicious prosecution action was to shift Affidavit of attorney, against whom burden to plaintiff to come forward malicious prosecution action was and show with proper proofs that brought, showing that he reasonably material question of fact existed as researched and investigated medical to whether defendant, who malpractice case and had tenable represented parties in prior medical theory to present to the court and malpractice action, brought that jury, together with fact that case action without probable cause. went to the jury and survived motions for summary judgment and 1 Cases that cite this headnote directed verdict, which, while not conclusively proving probable cause, was strong indication of substantial case, served to negate essential element for malicious prosecution, 1101 Malicious Prosecution namely, filing without probable id-Civil Actions and Proceedings cause. 249Malicious Prosecution 24911Want ofProbable Cause 2 Cases that cite this headnote 249k2SCivil Actions and Proceedings 2491(25(1)1n General To establish in malicious prosecution action probable cause for having brought prior action, it is 11~1 Malicious Prosecution not necessary to show that instigator =Advice of Counsel of the prior lawsuit was certain of 249Malicious Prosecution outcome of the proceeding but, 24911Want ofProbable Cause rather, that he had reasonable belief, 249k I 7Criminal Prosecutions 249k2I Advice of Counsel based on facts and circumstances liestlavvisied 0 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 A17 EFTA01199665 Wright v. Yurko, 448 So.2d 1182 (1984) 249k21(I)In General The other suit was filed by Wright against Reliance on advice of counsel is not the Donnans and Barnett Greene, an expert an absolute defense in malicious witness who testified at the malpractice trial prosecution case. for Leon Dorman. This case was dismissed because the lower court ruled the amended 2 Cases that cite this headnote complaint failed to state a cause of action. Greene was also awarded attorney's fees pursuant to section 57.105, Florida Statutes (1981). We reverse the dismissal of the complaint and the award of attorney's fees. Attorneys and Law Firms The issue in the Greene-Dorman case is whether the second amended complaint *1163 Robert W. Bowles, Jr., Orlando, and states a cause of action on any ground. The Joe Alfred Izen, Jr., Houston, Tex., for complaint sets forth the factual background appellant. out of which both lawsuits arose. In 1976 Wright administered a treatment called a Michael R. Levin, of Rumberger, Kirk, caudal epidural block to Leon Dorman for Caldwell, Cabaniss & Burke, P.A., Orlando, the purpose of alleviating his lower back for appellee Yurko. pain. During the course of these treatments or thereafter, both retinas of Leon's eyes Michael R. Walsh, Orlando, for appellees hemorrhaged, resulting in impaired vision. Dorman. The Dormans retained Yurko to represent Roy B. Dalton, Jr., of Dalton & Provencher, them in bringing a malpractice suit against P.A., Orlando, for appellee Greene. Wright. The case was tried before a jury for two weeks, and resulted in a favorable Opinion verdict for Wright. SHARP, Judge. Wright then brought suit against the Dormans and Greene, in essence' alleging that the Dormans conspired with Greene to Wright appeals from judgments denying him bring the malpractice case, with malice and relief as plaintiff in two malicious intent to injure Wright, and without any prosecution cases. The cases were basis or probable cause to have done so. In consolidated *1164 on appeal because they addition, there are also allegations that involved the same parties and the same Dormans and Greene conspired to, and gave, incident. In one suit, which was disposed of false and perjured testimony at the trial with by summary judgment, Wright sued Yurko, the intent to injure Wright. Wright alleged who represented Leon and Lila Dorman in damages of lost business profits, suit money, their malpractice case against Wright. We and attorney's fees incurred by defending affirm the summary judgment in that case. the suit. 7,:estlawNext m 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 A18 EFTA01199666 Wright v. Yurko, 446 So.2d 1162 (1984) 1 The complaint is exceedingly prolix and disorganized state! and, therefore, we have had to summarize its content rather than quote it as we would have preferred to do. 2 70 CJ.S. Perjury § 92 (1951); Restatement (Second) of Torts §§ 586-88, 635 (1981). Wright's complaint against Yurko contains essentially the same allegations except it 3 16 AmJur.2d Conspiracy § 55 (1964). claims Yurko instigated the suit and conspired with others to injure Wright by presenting perjured testimony. A third count alleges a cause of action of libel and slander 4 W. Prosser, Law of Torts, § 114, (4th ed. 1971); see against Yurko for statements he and his SA. Robertson v. Industrial Ins. Co., 75 Sa2d 1