IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BRADLEY J. EDWARDS, Appellant, -vs- JEFFREY EPSTEIN, Appellee. CASE NO. 4D14-2282 APPENDIX TO APPELLANT'S INITIAL BRIEF 1. Motion for Reconsideration dated February 6, 2014. A 1 -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. /kbt an BURLINGTON & ROCKENBACH, P.A. Attorneys for Appellant By: /s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. EFTA01085801 SERVICE LIST Edwards v. Epstein Case No. 4D14-2282 John Beranek, Esq. AUSLEY & MCMULLEN Attorneys for Jeffrey Epstein Fred Haddad, Esq. FRED HADDAD, P.A. Attorneys for Jeffrey Epstein Mark Nurik, Esq. LAW OFFICES OF MARC S. NURIK orneys for Scott Komstem Jack Goldberger, Esq. ATTERBURY, GOLDBERGER & WEISS, P.A. Attorneys for Jeffrey Epstein Tonja Haddad Coleman, Esq. TONJA HADDAD, P.A. Attorneys for Jeffrey Epstein Bradley J. Edwards, Esq. FARMER, JAH-E, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. W. Chester Brewer, Jr., Esq. Attorneys for Defendant Edwards W. CHESTER BREWER JR. P.A. orneys for Jettrey tJpstem EFTA01085802 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 EFTA01085803 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 EFTA01085804 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 EFTA01085805 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 EFTA01085806 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 EFTA01085807 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 EFTA01085808 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 EFTA01085809 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 EFTA01085810 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 EFTA01085811 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 EFTA01085812 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 EFTA01085813 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 JACK S Florid o.:• Atto Mail(s): E-Mail: ondary E-Mail(s): earcy Denney Scarola Barnhart & Shipley, P.A. , 2014. Attorneys for Bradley Edwards A12 EFTA01085814 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 13 of 13 COUNSEL LIST William Chester Brewer, Esquire ttorneys for Jetfiey Epstein Jack A. Goldberger, Esquire Attorneys for Jeffrey Epstein Brac~rdsäådre Farmer, Jaffe, Weissing, Edwards, Fistos & Fred Haddad, Esquire Attorneys for Jeffrey Epstein Marc S. Nurik, Esquire Law Offices of Marc S. Nurik ttorneys for Scott Rothstein Ton'a Haddad Coleman E uire onja a , . . Attorneys for Jeffrey Epstein A13 EFTA01085815 Wright v. Yurko, 448 So.2d 1182 (1984) 446 So.2d 1162 District Court of Appeal of Florida, Fifth District. Benjamin E. WRIGHT, Appellant, v. Albert YURKO, Leon C. Dorman, Lila Dorman and Barnette Greene, Appellees. Nos. 82-1438, 82-1497. 1 March 1,5, 1984. Doctor appealed from judgments of the Circuit Court, Orange County, Victor O. Wehle, J., denying him relief in malicious prosecution cases brought against medical malpractice plaintiffs, their expert witness, and their attorney. The District Court of Appeal, Sharp, J., held that: (1) counts in both lawsuits attempting to allege cause of action in defamation, conspiracy to commit defamation, or perjury with respect to statements made by defendants herein in course of prior judicial proceedings in medical malpractice action were insufficient as matter of law, such statements being accorded absolute immunity; (2) complaint as against medical malpractice plaintiffs and their expert witness sufficiently pleaded required elements of malicious prosecution 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 knowledge; and (4) that affidavit, showing that attorney reasonably researched and investigated medical malpractice case and had tenable theory to present to the court and jury, negated essential element for malicious prosecution claim against the attorney, namely, filing of challenged action without probable cause. Affirmed in part, reversed in part and remanded. Dauksch, J., concurred in part, dissented in part and filed opinion. West Headnotes (12) In Libel and Slander -i.-Judicial Proceedings 237Libel and Slander 237I1Privileged Communications, and Malice Therein 237k35Absolute Privilege 237Ic38Judicial Proceedings 237k38(I)In General Parties, witnesses, and counsel are accorded absolute immunity as to civil liability with regard to what is said or written in course of a lawsuit, providing the statements are relevant to the litigation. 5 Cases that cite this headnote 121 Libel and Slander c..--Judicial Proceedings 237Libel and Slander 23711Privikged Communications, and Malice westta•NNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. APPEM0IX A A14 1 EFTA01085816 Wright v. York°, 448 So.2d 1182 (1984) 131 Therein 237k35Absolute Privilege 237k38Judicial Proceedings 237k38(I)ln General Reason for rule according parties, witnesses, and counsel absolute immunity from civil liability for statements made in course of lawsuit is that, although it may bar recovery for bona fide injuries, chilling effect on free testimony and access to courts if such suits were allowed would severely hamper adversary system. 15 Cases that cite this headnote Libel and Slander ceNature and Elements of Defamation in General Torts 4?-Perjury or False Testimony 237Libel and Slander 237IWords and Acts Actionable, and Liability Therefor 2371c1Nature and Elements of Defamation in General 379Torts 379111Tortious Interference 379111(D)Obstruction of or Interference with Legal Remedies; Spoliation 379k307Pajury or False Testimony (Formerly 379k13) Remedies for perjury, slander, and the like committed during judicial proceedings are left to discipline of the courts, bar association, and the State. 7 Cases that cite this headnote 141 151 Conspiracy a.Nature and Elements in General 91Conspiracy 91ICivil Liability 911(A)Acts Constituting Conspiracy and Liability Therefor 91kINature end Elements in General 91k1.1 In General (Formerly 9Ikl) Actionable conspiracy requires actionable underlying tort or wrong; act which does not constitute basis for cause of action against one person cannot be made basis for civil action for conspiracy. 15 Cases that cite this headnote Conspiracy id-Conspiracy to Injure in Person or Reputation Libel and Slander c-Evidence Torts c-Perjury or False Testimony 91Conspiracy 91lCivil Liability 911(A)Acts Constituting Conspiracy and Liability Therefor 9Ik7Conspiracy to Injure in Person or Reputation 237Libel and Slander 237IIPrivileged Communications, and Malice Therein 237k35Absolute Privilege 2.37k38Judkial Proceedings 237k38(4)Evidence 379Torts 379111Tortious Interference 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 EFTA01085817 Wright v. Yurko, 448 So.2d 1182 (1984) Plaintiffs and their expert witness could not be held liable for defamation, conspiracy to commit defamation, or perjury with respect to statements made by them in course of judicial proceedings in medical malpractice action. 14 Cases that cite this headnote Malicious Prosecution ‘..—Requisites and Sufficiency in General 249Malicious Prosecution 249VActions 249k46Pleading 249k47Requisites and Sufficiency in General If all elements of malicious prosecution are properly pleaded in a complaint, suit must be allowed to proceed; however, if one element is not sufficiently pleaded, complaint should be dismissed. 1 Cases that cite this headnote 171 Malicious Prosecution :Requisites and Sufficiency in General 249Malicious Prosecution 249VActions 249k46Pleading 249k47Requisites and Sufficiency in General Allegations that medical malpractice suit was filed without probable cause Isl and with malice and intent to injure doctor and that it concluded in doctor's favor, resulting in special and general damages to him, together with allegation that plaintiffs' expert witness conspired with plaintiffs to bring the suit, stated cause of action for malicious prosecution. 2 Cases that cite this headnote Judgment aersonal Knowledge or Belief of Affiant 228.ludgment 228VOn Motion or Summary Proceeding 228k I82Motion or Other Application 228k185.lAffidavits, Form, Requisites and Execution of 228k185.1(3)Personal Knowledge or Belief of Affiant Affidavit of attorney, who unsuccessfully represented parties in medical malpractice action, in support of summary judgment in subsequent malicious prosecution action against him was in proper form, though omitting introductory statement that it was made based on personal belief and knowledge, inasmuch as it was clear from statements made in body of the affidavit with respect to consultations with medical experts and review of medical treatises that they were based on defendant's own knowledge. West's F.S.A. RCP Rules 1.510(e), 1.510 comment. NesttawNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 A16 EFTA01085818 Wright v. Yurko, 446 So.2d 1162 (1984) 2 Cases that cite this headnote 191 Judgment ..,-Presumptions and Burden of Proof 228Judgment 228VOn Motion or Summary Proceeding 228k I 82Motion or Other Application 2281c185Evidence in General 228k185(2)Presumptions and Burden of Proof Effect of defendant's motion for summary judgment in malicious prosecution action was to shift burden to plaintiff to come forward and show with proper proofs that material question of fact existed as to whether defendant, who represented parties in prior medical malpractice action, brought that action without probable cause. 1 Cases that cite this headnote 1101 Malicious Prosecution id-Civil Actions and Proceedings 249Malicious Prosecution 24911Want of Probable Cause 249k2SCivil Actions and Proceedings 2491(25(1)1n General To establish in malicious prosecution action probable cause for having brought prior action, it is not necessary to show that instigator of the prior lawsuit was certain of outcome of the proceeding but, rather, that he had reasonable belief, based on facts and circumstances known to him, in validity of the claim. 5 Cases that cite this headnote IIII Malicious Prosecution ,—Probable Cause and Malice 249Malicious Prosecution 249VActions 249k64Weight and Sufficiency of Evidence 249k64(2)Probable Cause and Malice Affidavit of attorney, against whom malicious prosecution action was brought, showing that he reasonably researched and investigated medical malpractice case and had tenable theory to present to the court and jury, together with fact that case went to the jury and survived motions for summary judgment and directed verdict, which, while not conclusively proving probable cause, was strong indication of substantial case, served to negate essential element for malicious prosecution, namely, filing without probable cause. 2 Cases that cite this headnote 11~1 Malicious Prosecution =Advice of Counsel 249Malicious Prosecution 24911Want of Probable Cause 249k I 7Criminal Prosecutions 249k2I Advice of Counsel liestlavvisied 0 2014 Thomson Reuters. No claim to original U.S. Government Works. A17 4 EFTA01085819 Wright v. Yurko, 448 So.2d 1182 (1984) 249k21(I)In General Reliance on advice of counsel is not an absolute defense in malicious prosecution case. 2 Cases that cite this headnote Attorneys and Law Firms *1163 Robert W. Bowles, Jr., Orlando, and Joe Alfred Izen, Jr., Houston, Tex., for appellant. Michael R. Levin, of Rumberger, Kirk, Caldwell, Cabaniss & Burke, P.A., Orlando, for appellee Yurko. Michael R. Walsh, Orlando, for appellees Dorman. Roy B. Dalton, Jr., of Dalton & Provencher, P.A., Orlando, for appellee Greene. Opinion SHARP, Judge. Wright appeals from judgments denying him relief as plaintiff in two malicious prosecution cases. The cases were consolidated *1164 on appeal because they involved the same parties and the same incident. In one suit, which was disposed of by summary judgment, Wright sued Yurko, who represented Leon and Lila Dorman in their malpractice case against Wright. We affirm the summary judgment in that case. The other suit was filed by Wright against the Donnans and Barnett Greene, an expert witness who testified at the malpractice trial for Leon Dorman. This case was dismissed because the lower court ruled the amended 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. The issue in the Greene-Dorman case is whether the second amended complaint states a cause of action on any ground. The complaint sets forth the factual background out of which both lawsuits arose. In 1976 Wright administered a treatment called a caudal epidural block to Leon Dorman for the purpose of alleviating his lower back pain. During the course of these treatments or thereafter, both retinas of Leon's eyes hemorrhaged, resulting in impaired vision. The Dormans retained Yurko to represent them in bringing a malpractice suit against Wright. The case was tried before a jury for two weeks, and resulted in a favorable verdict for Wright. Wright then brought suit against the Dormans and Greene, in essence' alleging that the Dormans conspired with Greene to bring the malpractice case, with malice and intent to injure Wright, and without any basis or probable cause to have done so. In addition, there are also allegations that Dormans and Greene conspired to, and gave, false and perjured testimony at the trial with the intent to injure Wright. Wright alleged damages of lost business profits, suit money, and attorney's fees incurred by defending the suit. 7,:estlawNext m 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 A18 EFTA01085820 Wright v. Yurko, 446 So.2d 1162 (1984) 1 The complaint is exceedingly prolix and disorganized and, therefore, we have had to summarize its content rather than quote it as we would have preferred to do. Wright's complaint against Yurko contains essentially the same allegations except it 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 against Yurko for statements he and his witnesses made in connection with the malpractice case. III PI 131 With regard to civil suits for perjury, libel, slander, defamation, and the like based on statements made in connection with judicial proceedings, this state has long followed the rule, overwhelmingly adopted by the weight of authority,' that such torts committed in the course of judicial proceedings are not actionable. Perl v. Omni International of Miami, Ltd., 439 So.2d 316 (Fla. 3d DCA 1983); Sailboat Key, Inc. v. Gardner, 378 So.2d 47 (Fla. 3d DCA 1979); Bencomo v. Morgan, 210 So.2d 236 (Fla. 3d DCA 1968); State v. Tillett, 111 So.2d 716 (Fla. 2d DCA 1959). Parties, witnesses and counsel are accorded absolute immunity as to civil liability with regard to what is said or written in the course of a lawsuit, providing the statements are relevant to the litigation' The reason for the rule is that although it may bar recovery for bona fide injuries, the chilling effect on free testimony and access to the courts if such suits were allowed would severely hamper our adversary system! Remedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state! 2 3 4 5 70 CJ.S. Perjury § 92 (1951); Restatement (Second) of Torts §§ 586-88, 635 (1981). 16 AmJur.2d Conspiracy § 55 (1964). W. Prosser, Law of Torts, § 114, (4th ed. 1971); see SA. Robertson v. Industrial Ins. Co., 75 Sa2d 198 (Fle.1954); Sussman v. Damian, 355 Said 809 (Pb. 3d DCA 1977). Buchanan v. Miami &raid Publishing Co., 230 So.2d 9 (Fla.1969). 141 Isl Since privilege bars Wright's causes of action against the Dormans, *1165 Greene and Yurko for defamation, it follows that there can be no actionable conspiracy to commit the same acts. An actionable conspiracy requires an actionable underlying tort or wrong.' An act which does not constitute a basis for a cause of action against one person cannot be made the basis for a civil action for conspiracy. Buchanan v. Miami Herald Publishing Company, 230 So.2d 9 (Fla.1969); Kent v. Kent, 431 So.2d 279 (Fla. 5th DCA 1983); Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla. 3d DCA 1981), petition for review denied, 412 So.2d 463 (Fla.1982). Therefore, the counts in both lawsuits which attempt to allege a cause of action in defamation and conspiracy to commit defamation and/or perjury are insufficient as a matter of law, and those causes of action were properly dismissed as to the Donnans, Greene, and Yurko. See Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th 'Nestiz9:4Next O 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 A19 EFTA01085821 Wright v. Yurko, 446 sold 1162 (1984) DCA 1971). 6 10 EIa.Jur.2d Conspiracy -Civil Aspects § I (1979). 161 The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution.' This tort has its own special elements and defenses. 'they arc: 7 M.: Prosser, supra note 4, at § 119; 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 (Fla1958). (I) 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 action; (4) the proceeding was instigated with malice; (5) without probable cause and (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. Hopke v. O'Byrne, 148 So.2d 755 (Fla. 1st DCA 1963). On the other hand, if one element is not sufficiently pleaded, the complaint should be dismissed. Napper v. Krentzman, 102 So.2d 633 (Fla. 2d DCA 1958). M We think that Wright pleaded all of the required elements of malicious prosecution against the Dorman and Greene, and therefore, the lower court improperly dismissed the amended complaint. Although verbose and stated in a conclusory fashion, see Hopke, Wright touched on each of the elements for malicious prosecution, as well as for conspiracy to commit malicious prosecution. He alleged that the malpractice suit was filed without probable cause and with malice and intent to injure him; it concluded in his favor; and it resulted in special and general damages to him. Wright further alleged that Greene conspired with the Dorman to bring the suit. Since the complaint stated a cause of action for malicious prosecution, the award of attorney's fees to Greene under section 57.105 was improper. Vogel v. Allen, 443 So.2d 368 (Fla. 5th DCA 1983). 181 In the Yurko suit, similar pleadings were taken beyond bare allegations. Counsel for Yurko moved for summary judgment and attached an affidavit with exhibits seeking to show that Yurko researched and investigated the Dorman case and had a reasonable belief that Dorman had a tenable claim against Wright. In his affidavit, Yurko set forth the names and conclusions of four medical experts he consulted, the medical books and treatises he read, and a history of his consultations with Dorman. Wright failed to file any counter-affidavits in opposition to the summary judgment motion. westtawNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 A20 EFTA01085822 Wright v. Yurko, 448 So.2d 1162 (1984) Attempting to create a fact issue which would preclude summary judgment and thereby avoid the consequences of failing *1166 to file any counter-affidavits or depositions,' Wright argues that Yurko's affidavit should be disregarded because it fails to state it was made on the basis of Yurko's personal knowledge. In order to bar affidavits based on hearsay, Florida Rule of Civil Procedure 1.510(e) requires that affidavits supporting or opposing summary judgment shall be made on the basis of personal knowledge. 8 CJ: Johnson v. City of Pompano Beach. 406 So.2d 1257 (Fla. 4th DCA 1981). In this case, although the preamble to Yurko's affidavit omitted the introductory statement that he was making it based on personal belief and knowledge, it is clear from the statements made in the body of the affidavit that they were based on his own knowledge. He listed his own conversations, research, and activities he took regarding his preparation for, and the filing of, the malpractice suit. Since there could be no other source for the statements other than his personal knowledge, we think Yurko's affidavit was in proper form, 9 The comment to Florida Rule of Civil Procedure 1.510 states "the requirement that it [the affidavit] show affirmatively that the affiant is competent to testify to the matters stated therein is not satisfied by the statement that he has personal knowledge; there should be stated in detail the facts showing that he has personal knowledge." 191 1191 The effect of Yurko's motion for summary judgment was to shift the burden to Wright to come forward and show with proper proofs that a material question of fact existed as to whether Yurko brought the suit without probable cause. Noack v. B.L. Watters, Inc., 410 So.2d 1375 (Fla. 5th DCA 1982); Hardcastle v. Mobley, 143 So.2d 715 (Fla. 3d DCA 1962). Probable cause in the context of a civil suit is measured by a lesser standard than in a criminal suit. But obviously less in the way of grounds for belief will be required to justify a reasonable man in bringing a civil rather than a criminal suit.... [T]he instigator need not have the same degree of certainty as to the facts, or even the same belief in the soundness of his case, and that he is justified in bringing a civil suit when he reasonably believes that he has a good chance of establishing it to the satisfaction of the court or jury. He may, for example, reasonably submit a doubtful issue of law, where it is uncertain which view the court will take. [T]ermination of the proceeding in favor of the plaintiff against whom it is brought is no evidence that probable cause was lacking, since in a civil action there is no preliminary determination of the sufficiency of the evidence to justify the suit [Footnotes omitted]. W. Prosser, Law of Torts § 120, at 854-855 (4th ed. 1971). To establish probable cause, it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding, 10 but rather that he had a reasonable belief, based on facts and 'NesttawNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. A21 EFTA01085823 Wright v. Yurko, 448 So.2d 1182 (1984) circumstances known to him, in the validity of the claim." 10 11 Goldstein v. Sabella, 88 So.2d 910 (Ha.1956). Gallucci v. Milavic. 100 So.2d 375 (Fla.1958). In Central Florida Machine Company, Inc. v. Williams, 424 So.2d 201 (Fla. 2d DCA), petition for review denied, 434 So.2d 886 (Fla.1983), a similar case against an attorney was disposed of in his favor by summary judgment. As in the instant case, the plaintiff in Williams had filed nothing in opposition to a motion for summary judgment. The appellate court held that summary judgment was proper because the probable cause determination was, at that juncture, a question of lawn and the affidavits were sufficient to show that the attorney conducted a reasonable investigation of the facts prior to filing suit, and had developed sufficient information to support "a reasonable honest belief in a tenable claim." Id. at 203. The court observed that if attorneys were required to meet too high a standard, it "could conceivably prohibit attorneys from pursuing and *1167 establishing new causes of action and could hinder the development of new legal theories." Id. It suggested the same standard as that adopted to test frivolous lawsuits and the award of attorneys' fees pursuant to section 57.105 should govern whether suits are filed without probable cause in the context of malicious prosecution suits. 12 City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979). "II We need not in this case adopt such a low standard. The affidavit here shows Yurko reasonably researched and investigated his case, and had a tenable theory to present to the court and jury. The fact that the case went to the jury and survived motions for summary judgment and directed verdict (which were most surely made), while not conclusively proving probable cause, is a strong indication of a substantial case. Cf Pinkerton v. Edwards, 425 So.2d 147 (Fla. 1st DCA 1983); K-Mart Corporation v. Sellars, 387 So.2d 552 (Fla. 1st DCA 1980). Since one of the essential elements for malicious prosecution, filing without probable cause, was established as lacking in the suit against Yurko, summary judgment was properly entered in his favor. Kalt. 1121 We recognize that our determination that Yurko had probable cause to file the malpractice suit may have a binding effect in Wright's suit against the Dolmans and Greene." However, reliance on advice of counsel is not an absolute defense in a malicious prosecution case." Further pleadings in the Dorman-Greene case will be required to raise this affirmative defense, and Wright may be able to challenge its application in his reply or facts raised in the record as that case progresses. Therefore, final disposition by us, on the basis of the amended complaint and motion to dismiss, would be premature in the Dorman-Greene case. 13 Collateral estoppel may be applicable. See United WestlawNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. A22 9 EFTA01085824 Wright v. Yurko, 446 So.2d 1162 (1984) 14 States Fidelity and Guar. Ca v. Odom, 444 So.2d 78 (Fla. 5th DCA 1984). [A]dvia of counsel is a defense to an action predicated upon malicious prosecution only in [the] event there has ban a full and complete disclosure made to the attorney before his advice is given and followed. Glass v. Parrish, 51 So.2d 717, 72I (F1a.1951); see Paulk v. Ruesynski, 106 So.2d 100 (Fla. 2d DCA 1958); Prosser, supra. note 4, at § 119. AFFIRMED AS TO APPEAL NUMBER 82-1438; REVERSED AS TO APPEAL NUMBER 82-1497; AND REMANDED. COWART, J., concurs. DAUKSCH, J., concurs in part; dissents in part, with opinion. DAUKSCH, Judge, concurs in part; dissents in part: I would affirm the trial court in all respects. End of Document O2014 Thomson Reuters. No claim to original U.S. Government Waits. 'NestlawNext O 2014 Thomson Reuters. No claim to original U.S. Government Works. A2310 EFTA01085825 Graham-Eckes Palm Beach Academy, Inc. v. Johnson, 573 So.2d 1007 (1991) 16 Fla. L. Weekly 329 573 So.2d 1007 District Court of Appeal of Florida, Fourth District. GRAHAM-ECKES PALM BEACH ACADEMY, INC., a Florida corporation, Appellant, v. Warren D. JOHNSON, Jr., Appellee. No. 9o-0026. I Jan. 30, 1991. In litigation relating to real property, defendants filed counterclaim for intentional interference with contract for sale of land and slander of title. The Circuit Court, Palm Beach County, Edward A. Garrison, J., entered judgment on pleadings against defendant on counterclaim, and defendant appealed. The District Court of Appeal held that absolute privilege normally accorded to pleadings applies even if complaint is wholly frivolous and filed to interfere with performance of contract for sale of property. Affirmed. West Headnotes (I) 111 Libel and Slander --Defenses Malicious Prosecution Civil Actions Torts •=Contracts in General Absolute privilege normally accorded to pleadings applied even if complaint was wholly frivolous and filed to interfere with performance of contract for sale of property; instead of counterclaims for intentional interference with contract for sale of land and slander of title, proper cause of action for filing complaint was one for malicious prosecution. Attorneys and Law Firms *1008 Larry Klein of Klein & Walsh, P.A., and McKeown, Gamot & Phipps, West Palm Beach, for appellant. Michael B. Davis of Davis Hoy Carroll & Isaacs, P.A., West Palm Beach, for appellee. Opinion PER CURIAM. Graham-Eckel Palm Beach Academy, Inc., appeals from the entry of a final judgment on the pleadings on its counterclaim for intentional interference with a contract for the sale of land and slander of title. We affirm. 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). AFFIRMED. DELL, STONE and WARNER, .13., concur. Parallel Citations 16 Fla. L. Weekly 329 End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. © 2014 Thomson Reuters. No claim to original U.S. Government Works. APPEmptx A24 1 EFTA01085826 § 676Propriety of Purpose, Restatement (Second) of Torts § 676 (1977) Restatement