EFTA01106989.pdf

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CASE NO. 4D14-2282 BRADLEY J. EDWARDS, Appellant, -vs- JEFFREY EPSTEIN, Appellee. / INITIAL BRIEF OF APPELLANT On appeal from the Fifteenth Judicial Circuit 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 EFTA01106989  TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES iii-vii PREFACE viii STATEMENT OF THE CASE AND FACTS 1-7 SUMMARY OF ARGUMENT 8-9 ARGUMENT 10-40 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. CONCLUSION 40 CERTIFICATE OF SERVICE 41 CERTIFICATE OF TYPE SIZE & STYLE 42 ii EFTA01106990  TABLE OF AUTHORITIES CASES PAGE Alamo-Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994) 17 Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039, 1041 (Fla. 1982) 39 Clark v. Druckman, 624 S.E.2d 864, 872 (W. Va. 2005) 27 Crowell v. Herring, 301 S.C. 424, 392 S.E.2d 464, 468 (Ct.App.1990) 27 Del Monico v. Traynor, 116 So.3d 1205, 1211 (Fla. 2013) 10, 15, 16 Doe v. United States, 817 F.Supp.2d 1337 (S.D. Fla. 2011) 3 E.W. v. Epstein ("EW" or "Jane Doe" #2), 502008CA028058XXXXMBAB (Fla. 15th Circuit) 2 Echevarria, McCal1a, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007) 15, 29, 33 Engel v. CBS, Inc, 182 F.3d 124, 128 (2d Cir. 1999) 18 Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 346 (D.C. 2001) 27 Fisher v. Payne, 113 So.378 (Fla. 1927) 19, 20, 21, 33 Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) 13, 15, 23 iii EFTA01106991 Friedman v. Dozorc, 312 NW 2d 585, 595 n.20 (Mich. 1981) 18 Goldstein v. Serio, 496 So.2d 412, 414-15 (La.Ct.App.1986) 26 Graham-Eckes Palm Beach Academy v. Johnson, 573 So.2d 1007 (Fla. 4th DCA 1991) 22, 32 Hogen v. Valley Hosp., 147 Cal.App.3d 119, 195 Ca1.Rptr. 5, 7 (1983) 26 Indus. Power & Lighting Corp. v. W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981) 27 Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1277 (11th Cir. 2004) 25 Jane Doe No. 1, et al. v. United States, 749 F.3d 999 (11th Cir. 2014) 2, 3 Johnson v. Sackett, 793 So.2d 20, 25 (Fla. 2d DCA 2001) 25 ICalina v. Fletcher, 522 U.S. 118, 133 (1997) 18, 24 Keys v. Chrysler Credit Corp. 303 Md. 397, 407, 494 A.2d 200, 205 (1985) 35 Keys v. Chrysler Credit Corp., 303 Md. 397, 494 A.2d 200, 204 (1985) 26 L.M. v. Epstein ("LM"), Case No. 502008CA028051XXXXMBAB (Ha. 15th Circuit) 2 LaFrance v. U.S. Bank National Association. 141 So.3d 754 (Fla. 4th DCA 2014) 10 iv EFTA01106992 LatAm Investments, LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011) 29 Levin, Middlebrooks, Mabie, Thomas, 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 Loigman v. Township Committee, 889 A.2d 426, 436 n.4 (N.J. 2006) 27 Mansfield v. Bernabei, 727 S.E. 2d 69, 72-73 (Va. 2012) 12 Mantia v. Hanson, 190 Or.App. 412, 79 P.3d 404, 408-09 (2003) 26 McKinney v. Okoye, 282 Neb. 880, 889, 804-06 N.W.2d 571, 577-79 (2011) 37 Myers v. Hodges, 44 So. 357 (Fla. 1907) 11, 12, 13, 20, 29 North Star Capital Acquisitions, LLC v. King, 611 F.Supp 2d 1324 (M.D. Fla. 2009) 25 Olson v. Johnson 961 So.2d 356 (Fla. 2d DCA 2007) 23, 31, 33, 35 Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981) 22 Rainier's Dairies v. Raritan Valley Farms, 117 A.2d 889, 896 (N.J. 1995) 34 Rainier's Dairies v. Raritan Val. Farms, 19 N.J. 552, 117 A.2d 889, 895 (1955) 26 Rushing v. Bosse, 652 So.2d 869, 875 (Fla. 4th DCA 1995) 24 EFTA01106993 SCI Funeral Services of Florida, Inc. v. Henry, 839 So.2d 702 (FIa. 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 Tatum Bros. Real Estate & Investment Co. v. Watson, 109 So.623 (Fla. 1926) 17,18 The Estate of Mayer v. Lax, Inc., 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 App. 9 Dist. 2005) 27 Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013) 6, 7, 8, 10, 11, 19, 24, 26, 28, 29, 30, 31, 32, 33, 34, 39 Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984) 21, 22, 25, 31 STATUTES § 57.105, Fla. Stat. 38 § 768.28(9)(a), Fla. Stat 25 § 772.101, Fla. Stat. 3 § 895.01, Fla. Stat. 3 vi EFTA01106994 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 39 Restatement (Second) of Torts § 587, cmt. (a) 36 Restatement (Second) of Torts § 674 36 vii EFTA01106995  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 EFTA01106996  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 set of criminal and civil cases in which these parties have been involved for years. A summary of the history of those proceedings should suffice to provide an adequate factual context for this appeal. In September of 2007, billionaire Jeffrey Epstein ("Epstein") entered into a Non-Prosecution Agreement ("NPA") with the United States arising from an investigation into his criminal sexual conduct with a large number of minor female victims (R2:285). In that NPA, Epstein agreed, inter alia, to plead guilty to state felony charges involving the solicitation of prostitution and the procurement of minors to engage in prostitution and further agreed to be registered as a sex offender (R2:285). Epstein also agreed to accept an 18 month sentence of incarceration for the state charges, a one year period of community control, and to waive liability 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 EFTA01106997  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) Bradley Edwards ("Edwards") is an attorney who represented nine of the many victims of Epstein's criminal conduct, and he filed three civil actions seeking compensatory and punitive damages outside the limitations of 18 U.S.C. § 2255 against Epstein, alleging sexual assault and battery (R2:281-82; 3:549). Those cases included Jane Doe v. Epstein ("Jane Doe"), Case No. 08-CIV-80893, U.S. District Court, Southern District of Florida; L.M. v. Epstein ("LM"), Case No. 502008CA0280513OCXXMBAB (Fla. 15th Circuit); and E.W. v. Epstein ("EW" or "Jane Doe #2"), Case No. 502008CA028058XXXXMBAB (Fla. 15th Circuit) (R2:282). Edwards aggressively pursued discovery into the full scope of Epstein's criminal conduct, including the potential involvement in that conduct of some of Epstein's high profile associates (R2:286-87). Additionally, on behalf of two of his clients, Edwards filed an action in federal court alleging that the NPA had been negotiated in violation of the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771. Jane Doe No. 1, et al. v. United States, 749 F.3d 999, 1002 (11th Cir. 2014). Edwards 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 EFTA01106998 Among other relief in that federal lawsuit, Edwards 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. Ha. 2011). Most recently the United States Court of Appeals for the Eleventh Circuit upheld the trial court's ruling that entitled Edwards' clients to the correspondence between Epstein's attorneys and the United States leading up to the NPA. att Doe, 749 F.3d at 999. See generally, Paul G. Cassell, Bradley J. Edwards & Nathanael James Mitchell, Protecting Crime Victims' Rights Before Charges Are Filed: The Need for Expansive Interpretation of the Crime Victims' Rights Act and Similar State Statutes, 104 J. Crim. L. & Criminology 59 (2014) (discussing the Epstein case in detail and its importance to the development of crime victims' rights law). While Edwards was pursuing the CVRA case and, among others, the three civil cases noted alone for his clients, Epstein filed a lawsuit in the Circuit Court of the Fifteenth Judicial Circuit against Edwards, Scott Rothstein, and one of Edwards' 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 3 EFTA01106999 commit fraud, and abuse of process (R1:30-35). The gravamen of the Complaint was that after Edwards 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 scheme involved, inter alia, the assignment of rights to future settlement agreements in civil actions (R1:5). Essentially, Epstein's Complaint claimed that Rothstein, Edwards and L.M. defrauded him and engaged in criminal conduct, as well as abuse of process, by trying to maximize the value of the claims against him. While reciting in detail the misconduct of Rothstein which had become public knowledge, Epstein's Complaint did not allege any involvement of Edwards in the Ponzi scheme, only that he "knew or should have known" about Rothstein's misconduct (R1:10). Epstein's Complaint did not deny his own extensive criminal culpability. Edwards filed an Answer denying the material allegations of the Complaint and included a Counterclaim against Epstein initially alleging abuse of process and subsequently amending to include a malicious prosecution claim after Epstein's claims were 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 Edwards' actions in furtherance of his clients' interests were both entirely proper and 4 EFTA01107000 absolutely privileged (R2:335). The Counterclaim further alleged that the suit against Edwards was initiated for the sole purpose of intimidating Edwards and interfering with his ability to represent his clients in ongoing civil actions against Epstein (R2:332). Edwards alleged the lawsuit was a vehicle for Epstein to make false statements harmful to Edwards' reputation, professional standing, and his ability to effectively represent his clients (R2:333-35). After extensive litigation, Epstein dropped L.M. as a party and reduced his claims to abuse of process and conspiracy to engage in abuse of process on the part of Rothstein and Edwards (R1:200). On September 22, 2010, Edwards filed a Motion for Summary Judgment which was initially denied as premature (R2:240-68, 272). Subsequently, Edwards renewed that motion on October 4, 2011 (R2:360). After extensive filings in support of the renewed Motion for Summary Judgment, a hearing date was set (R4:607). On August 16, 2012, the day before the matter was scheduled to be heard and without ever contesting either the facts or the law on which Edwards' Motion for Summary Judgment was based, Epstein filed a Notice of Voluntary Dismissal as to his remaining claims (R4:612-13). Edwards' Counterclaim against Epstein, however, was still pending (R2:330-37). Subsequently, the court granted Edwards leave to amend that pleading to include a claim for punitive damages (R4:742-43). The malicious 5 EFTA01107001 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 Edwards . . . for the sole purpose of further attempting to intimidate Edwards . . . and others into abandoning or settling their legitimate claims for less than their just and reasonable value" (R4:751). After the filing of the Fourth Amended Counterclaim, the Third District issued its decision in Wolfe v. Foreman 128 So.3d 67 (Fla. 3d DCA 2013), which appears to be the first opinion in the country to hold that a malicious prosecution claim is barred by the litigation privilege. As explained infra, Wolfe conflicted with pre-existing Florida case law on this issue. Based on Wolfe, Epstein filed a Motion for Summary Judgment arguing, inter alia, that Edwards' claims were barred, as a matter of law, by the litigation privilege (R5:806, 808). After a hearing on the motion, the trial court stated its intention to grant summary judgment in favor of Epstein (SRI :1268-71). Before a written ruling, however, Edwards filed a Motion for Reconsideration, observing that the case "squarely presented . . . [the issue of] 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 6 EFTA01107002 extorting a negotiating advantage in other civil litigation" (SR2:1).i 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 Epstein's Motion for Summary Judgment (R7:1202-05). The trial court's order stated (R7:1203): [T]he cases cited by Edwards involved malicious prosecution claims stemming from actions filed by the party themselves, not counsel. In the instant case, it was conceded that all filings were done by an attorney in good standing with the Florida Bar, rather than by an individual party. The trial court also entered a separate Order Denying Edwards' Motion for Reconsideration without comment (R7:1206-07). The court then entered a Him! Summary Judgment. Edwards now takes this appeal from that Judgment (R7:1208-09). I Edwards' 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 EFTA01107003  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, any malicious prosecution action against the party or parties who actually filed the initial action. The Wolfe decision makes no attempt to reconcile the indisputable fact that the litigation privilege and the tort of malicious prosecution have coexisted at the common law without conflict for hundreds of years, and that there is apparently no other decision in the country that reaches the conclusion that the majority did in Wolfe. Moreover, there is conflicting case law on the issue in Florida, which the Wolfe decision simply ignores, including authority from this Court. Therefore, this Court should not follow Wolfe, but should conclude, consistent with extensive authority in Florida and throughout the country, that the litigation privilege does not apply to the malicious initiation of meritless litigation. The litigation privilege is designed to protect statements and actions during litigation, 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 EFTA01107004 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 will eliminate a significant deterrent to unnecessary litigation which unreasonably burdens the court and the parties victimized by such conduct. Therefore, for the reasons stated above, this Court should reverse the Summary Judgment entered by the circuit court and remand the case for further proceedings. 9 EFTA01107005  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 Orders granting summary judgment are reviewed under the de novo standard of review. LaFrance v. U.S. Bank National Association, 141 So.3d 754 (Fla. 4th DCA 2014). Additionally, where the material facts are not disputed, the determination whether a privilege arises is a question of law which is reviewed de novo. Del Monico v. Traynor, 116 So.3d 1205, 1211 (Fla. 2013). Introduction The trial court erred in concluding that the litigation privilege bars a claim for malicious prosecution.'' The trial court relied primarily on the Third District's decision in Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013) which held that the litigation privilege bars malicious prosecution claims. However, Wolfe conflicts 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 , - In this appeal, Edwards challenges only the trial court's ruling on his malicious prosecution claim, not his abuse of process claim. 10 EFTA01107006 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. The overwhelming weight of authority and the pertinent policy considerations demonstrate that Wolfe was wrongly decided, and that the litigation privilege as developed by the Florida Supreme Court does not justify the result in this case. Therefore, this Court should reverse the Summary Judgment. The Development of the Litigation Privilege in Florida Supreme Court 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, Hodges had filed suit against a corporation in which Myers was the president. Hodges' Bill of Equity contained allegations relating to Myers personally, including that he was "a tricky, dishonorable, unscrupulous and conscienceless man;" ... and that he had stated he would do "everything in his power to beat [Hodges] out of the money owing to him, short of swearing to a lie" (44 So. at 358). While that language was stricken from the Bill of Equity by the trial court, 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 EFTA01107007 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 adopted the rule developed in the American common law that the litigation privilege would only apply to statements made in a judicial proceeding which were relevant to the subject matter of the action. The Court stated: 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 words wholly and entirely outside of, and having no connection with, the matter of inquiry. Myers, 44 So.at 361. The Court in Myers did note, however, that much latitude should be granted in determining whether statements are pertinent to the proceedings; and that if the statements were not pertinent, a qualified privilege arose that could only be 3 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, Mabie, Thomas, Mayes and Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Ha. 1994). Some jurisdictions use different terminology such as "judicial privilege," Mansfield v. Bernabei, 727 S.E. 2d 69, 72-73 (Va. 2012); or just refer to it generally as an absolute privilege, Lgms. Goldstein v. Serio, 496 So.2d 412, 414 (La. App. 1986). Edwards will refer to it as the "litigation privilege" throughout this brief 12 EFTA01107008 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 courts and in asserting their rights, because in this way the purposes of justice will be served. Id. The Myers decision demonstrates that the litigation privilege arose from and has been developed by the common law, and that it is justified only by the policy considerations involving in-court proceedings. The policy considerations justifying the privilege — latitude regarding the "conduct of ...[a] cause in court" — do not in any way pertain to the filing of a lawsuit, much less a meritless one brought with malicious motives. The first significant clarification of the litigation privilege in Florida after Myers occurred in Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992). In that case, the Supreme Court held that defamatory statements voluntarily made by a private individual 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 EFTA01107009 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. Thomas, 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 interference with the business relationship that occurred during the course of judicial proceeding, so long as the act had some relevance to that proceeding. In that case, the Levin firm represented a client in litigation against an insurance company. The insurance company subpoenaed one of that firm's attorneys to be a witness at trial, resulting in the disqualification of that firm as counsel for the plaintiff. However, the insurance company did not call that attorney as a witness at the trial. After the case was concluded adverse to the insurance company, the law firm sued the insurance company for intentional interference with a business relationship for issuing the subpoena and obtaining disqualification of the law firm. The Court in Levin 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 EFTA01107010  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 to acts involved in initiating litigation. In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007), the lower court held that the litigation privilege, being a creature of the common law, did not apply in cases where the cause of action was created by statute. The Florida Supreme Court overturned that decision holding that the litigation privilege applies in judicial proceedings, 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 justifying the privilege still apply, those considerations were the "perceived necessity for candid and unrestrained communications in judicial proceedings" (950 So.2d at 384). Recently, 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 EFTA01107011 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 an individual to maintain his or her reputation and not be subjected to slander or malicious conduct. Delmonico, 116 So.3d at 1217. The Court in Delmonico concluded that since judicial oversight and other protections applicable in judicial proceedings were unavailable (or far less effective) for deterring conduct during an out-of-court informal investigation, such conduct was only entitled to a qualified privilege. That qualified privilege would apply if the statements at issue were relevant to the subject matter of the lawsuit; however, a plaintiff could overcome the privilege by proving that the statements were made with express malice (116 So.3d at 12, 18-19). Malicious Prosecution Claims in Florida Standing side-by-side with Florida case law developing a limited litigation privilege is 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 EFTA01107012  While the tort of malicious prosecution was initially recognized in Tidwell v. Witherspoon, 21 Ha. 359 (Ha. 1885), it was first discussed in-depth by the Florida Supreme Court in Tatum Bros. Real Estate & Investment Co. v. Watson, 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. Tatum Bros. Real Estate, 109 So. at 626. Those elements remain the requirements for a prima facie malicious prosecution action. See Alamo-Rent-A-Car. Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994). As stated in Tatum Bros supra, malicious prosecution was an action ex delicto at the common law (109 So. at 626). Its genesis was English common law which, despite providing for the losing party in litigation to pay the fees and costs of the prevailing party, nonetheless recognized a need for a remedy when special 17 EFTA01107013 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., Tatum Bros, supra, with the relevant policy considerations described by Prosser, as follows: The law supports the use of litigation as a social means for resolving disputes, and it encourages honest citizens to bring criminals to justice. Consequently the accuser must be given a large degree of freedom to make mistakes and misjudgments without being subjected to liability. On the other hand, no one should be permitted to subject a fellow citizen to prosecution for an improper purpose and without an honest belief that the accused may be found guilty. Prosser and Keeton on the Law of Torts 119, p. 871 (5th Ed. 1984). The competing policy consideration underlying malicious prosecution claims were addressed in the elements of the prima facie case. The individual's interest in freedom from unjustifiable litigation and the societal interest in not chilling access to the courts were protected by the onerous requirement that the plaintiff prove an absence of probable cause and, most important, express malice. Id. As noted in Kalina v. Fletcher, 522 U.S. 118, 133 (1997) (Scalia, J., concurring) "[T]here 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: 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 Friedman v. Dozorc, 312 NW 2d 585, 595 n.20 (Mich. 1981). 18 EFTA01107014  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 Fletcher, and liability would attach only if Fletcher could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful. ICalina'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 in the malicious prosecution suit), because of the absolute privilege protecting such testimony from suits for defamation. The Litigation Privilege Was Not Applied to Malicious Prosecution Claims i❑ Florida Prior to Wolfe Well-developed Florida case law allowed a malicious prosecution claim to proceed even in the face of an assertion of litigation privilege. In Fisher v. Payne, 113 So.378 (Fla. 1927), the Florida Supreme Court addressed a case in which defendants asserted the litigation privilege to defend against a malicious prosecution action. There, Fisher had a lunacy inquisition filed against her, and the court appointed the three defendants to assess Fisher's sanity. They all concluded that she was insane. The trial court then adjudged Fisher to be insane and had her transported to a state hospital for restraint and maintenance. Approximately a year later, the circuit 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. 19 EFTA01107015  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 (common law) pleadings and determined them insufficient to demonstrate a prima facie case for malicious prosecution.5 Specifically, the Court found the declaration did not allege that any of the defendants had initiated the lunacy proceedings against Fisher. The plaintiffs' pleading acknowledged that the defendants were appointed to the examining committee by the court after the action had been filed, but there was no allegation that the defendants were involved in the initiation of the action. As a result, that required element of the tort had not been alleged and a judgment on the pleadings was justified. Id. 113 So. at 381. In Fisher, the Court also noted that the plaintiffs had failed to allege the essential element of malicious prosecution that the lunacy proceedings were commenced without probable cause. Id. If the Court in Fisher believed that the litigation privilege established in Myers applied as a bar to the malicious prosecution claim, there would have been no need to address whether plaintiffs' allegations sufficiently stated the elements of that tort. Obviously, the Florida 5 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 EFTA01107016 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 Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984), the Fifth District consolidated two actions in which a doctor sued people who had initiated or participated in an unsuccessful medical malpractice action against him. In one suit, Wright sued Yurko, the attorney that represented the plaintiffs in the medical malpractice action; and in a second suit he sued the plaintiffs (the Dormans) and Barnett Green, the expert witness who testified for them. Wright alleged claims for perjury, libel, slander, defamation and malicious prosecution. The trial court dismissed the complaint against the Dormans and Green, and granted summary judgment in favor of Yurko. Wright appealed both rulings and they were consolidated on appeal. In Wright, the Fifth District first addressed the dismissal of the claims against the Dormans and Green. 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 EFTA01107017  The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution. [Footnote deleted.] Wright, 446 So.2d at 1165. The Fifth District proceeded to analyze Wright's complaint and determined that it sufficiently alleged the elements of malicious prosecution claims, concluding that the dismissal order should be reversed.° Thus, while the Fifth District in Wright concluded that the litigation privilege barred every other claim in Wright's complaint against the Dormans and Green, it did not bar the malicious prosecution claim. Similarly, in Graham-Eckes Palm Beach Academy v. Johnson, 573 So.2d 1007 (Fla. 4th DCA 1991) (p curiam), this Court affirmed a final judgment denying relief on claims for intentional inference with a contract for sale of land and slander of title. This Court stated: Appellant contends that the 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 Wright's suit against Yurko, the Fifth District upheld the summary judgment against Wright 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 EFTA01107018  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. Johnson, 961 So.2d 356 (Fla. 2d DCA 2007), the Second District also concluded that a malicious prosecution action was not barred by the litigation privilege. In that case, Johnson was in a custody battle with a man named Olson, and she and two of her friends signed affidavits alleging that he was stalking her. Those affidavits provided the basis for a criminal charge to be brought against Olson. However, Olson was acquitted and then sued the three women for malicious prosecution. The trial court granted summary judgment to Johnson, and the Second District reversed, concluding, inter alia, that Olson's claim was not barred by the litigation privilege. The Second District, in an opinion authorized by then-Judge Canady, stated: Johnson's reliance on Fridovich is unwarranted. In relying on Fridovich, Johnson confuses the law of defamation-with which Fridovich deals-with the law of malicious prosecution-which is at issue in the instant case. Olson has made no claim based on defamation, and the fact that defamatory statements may have been made in the course of the conduct which Olson alleges as the basis for his claim does not transform that claim into a defamation claim that is subject to an assertion of the absolute privilege or qualified privilege discussed in Fridovich. There is no equivalent privilege available to a complaining witness such as Johnson who is named as a defendant in a malicious prosecution action. Such a defendant must defend against a malicious 23 EFTA01107019  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 all had ruled that the litigation privilege did not apply to bar malicious prosecution claims. Other references in Florida district court decisions also demonstrate that prior to Wolfe the litigation privilege was not considered to be an absolute bar to a malicious prosecution action. For example, in Rushing v. Bosse, 652 So.2d 869, 875 (Fla. 4th DCA 1995), this Court noted that the complaint stated, inter alia, a cause of action for malicious prosecution on behalf of a child who was subject to a wrongful adoption proceed