Filing # 61938207 E-Filed 09/25/2017 01:11:08 PM

Filing # 61938207 E-Filed 09/25/2017 01:11:08 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, -VS- SCOTT ROTHSTEIN, individually and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiffs. DEFENDANT/COUNTER-PLAINTIFF BRADLEY EDWARDS' MOTION TO STRIKE PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S MOTION FOR SUMMARY JUDGMENT ON THE FOURTH AMENDED COUNTERCLAIM AND SUPPORTING MEMORANDUM OF LAW Defendant/Counter-Plaintiff, Bradley J. Edwards, individually, by and through his undersigned counsel, hereby files this Motion to Strike Plaintiff/Counter-Defendant Jeffrey Epstein's Motion for Summary Judgment on the Fourth Amended Counterclaim and Supporting Memorandum of Law, based on the law of the case doctrine. RELEVANT PROCEDURAL BACKGROUND In the Fourth Amended Counterclaim, Edwards raised two claims against Epstein: 1) abuse of process and 2) malicious prosecution. As to the malicious prosecution claim, Edwards alleged that the filing of the original complaint by Epstein constituted malicious prosecution because Epstein filed it 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." I EFTA00613501 After the filing of the Fourth Amended Complaint, Epstein moved for summary judgment, arguing as to the malicious prosecution claim that summary judgment was required based upon the litigation privilege. Alternatively, Epstein argued that the claim failed as a matter of law because the "undisputed facts" established that there was probable cause for his original action against Edwards which barred a claim for malicious prosecution. He also claimed that Edwards could never establish a bona fide termination in his favor. The absence of probable cause for the prosecution and bona fide termination in the plaintiff's favor are two of six elements of a claim for malicious prosecution. See Rivernider v. Meyer, 174 So.3d 602, 604 (Fla. 4th DCA 2015) (noting the six elements to a malicious prosecution claim: 1) the commencement of a judicial proceeding; 2) its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for the prosecution; 5) malice; and 6) damages). Edwards responded to the Motion, fully addressing both the litigation privilege argument and the probable cause and bona fide termination arguments. At the hearing on the Motion for Summary Judgment, this Court explained that it "would not grant the motion because of at least those two reasons; that is that I believe that there are questions of fact related to the probable cause issue, as well as the bona fide determination issue additionally." (1127/14 hearing transcript, p.24) (A copy of the transcript is attached as Exhibit A). Thus, the Court determined, based upon the evidence submitted and the argument. that the probable cause issue was one for the jury. However, this Court granted summary judgment in favor of Epstein based on the litigation privilege, relying on Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013). Accordingly, Final Judgment was entered in favor of Epstein. 2 EFTA00613502 Edwards appealed the summary judgment, addressing in his Initial Brief only the litigation privilege issue, as that was the basis upon which this Court ruled against Edwards. In his Answer Brief, Epstein argued: In addition, Appellee argued in his Summary Judgment motion that Appellant could not satisfy all of the elements of a Malicious Prosecution claim, including that the suit by Appellee against Appellant resulted in a bona-fide termination in favor of Appellant. Appellee took a voluntary dismissal without prejudice, which does not constitute a bona-fide termination, one of the six essential elements of a malicious prosecution claim. See Valdes v. GAB Robins, 924 So.2d 862 (Fla. 3d DCA 2006). Appellant neither addresses nor submits argument as to Appellee's assertion, so this is not addressed in this Answer Brief. Rather, Appellee reasserts all argument as delineated in his original Motion for Summary Judgment and relies thereupon. (AB, p.7, n1) (emphasis added). (A copy of Epstein's Answer Brief is attached as Exhibit B). While the appeal was pending at the Fourth District, that court issued an opinion in Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015), approved, 217 So.3d 68 (Fla. 2017). In Fischer, the court held that the litigation privilege could not be applied to bar a claim for malicious prosecution or abuse of process. The court certified conflict with Wolfe; the Florida Supreme Court ultimately approved Fischer and disapproved the Third District's decision in Wolfe. In its Opinion in this case, the Fourth District held that its decision in Fischer controlled as to the litigation privilege issue. Edwards v. Epstein, 178 So.3d 942, 943 (Fla. 4th DCA 2015), rev. denied, No. SC15-2286, 2017 WL 2492567 (Fla. June 9, 2017). However, the court did not stop there. The court also addressed the probable cause issue. As to that issue, the court held: Epstein suggests that this case could be decided on a tipsy coachman analysis, as he alleges that all the elements of the cause of action were not present. However, the trial court specifically found that material issues of fact remained as to the elements of the claim. Based upon the facts presented and the inferences which may be drawn from those facts, we will not disturb the trial court's evaluation. 3 EFTA00613503 Id. (emphasis added). Thus, the Fourth District considered Epstein's probable cause argument and expressly affirmed this Court's decision that summary judgment was not appropriate on that issue. ARGUMENT This Court's decision that there was a genuine issue of material fact as to the probable cause issue was considered and approved by the Fourth District Court of Appeal; further consideration of the issue is barred by the law of the case doctrine. "The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings." Florida Dept. of Transp. v. Juliano, 801 So.2d 101, 105-06 (Fla. 2001) (citing Greene v. Massey, 384 So.2d 24, 28 (Fla. 1980) ("All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case."); Strazzu//a v. Hendrick, 177 So.2d 1, 3 (Fla. 1965)). "Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case." Id. at 106. Epstein asks this Court to grant summary judgment in his favor on the basis that there is no genuine issue of material fact that he had probable cause to bring his original action against Edwards. However, Epstein made this same argument to the Fourth District in his Answer Brief. The Fourth District rejected it and approved this Court's ruling on that issue, and "the facts on which this decision [was] based continue to be the facts of the case." Juliano, 801 So.2d at 106. Therefore, the law of the case doctrine binds this Court to follow the Fourth District's holding (and therefore this Court's prior determination) on this issue. The Fourth District Court of 4 EFTA00613504 Appeal has already affirmed this Court's decision that there is a genuine issue of material fact as to probable cause; thus, consideration of this issue by this Court again is precluded by the law of the case doctrine. Gabor v. Gabor & Co., Inc., 599 So.2d 737, 739 (Fla. 3d DCA 1992), is directly on point. In Gabor, the appellate court held that there was a genuine issue of material fact as to the claim in question and reversed the trial court's entry of summary judgment. On remand, the trial court considered the same issue again in a successive motion for summary judgment and entered summary judgment as to the claim in question. On appeal of the second summary judgment, the appellate court again reversed, based upon the law of the case doctrine. The court explained: In the case sub judice, this court had determined in the previous appeal that a genuine issue of material fact existed as to whether Frank and Ronald Gabor acted in their capacities as directors or officers of the corporations during the events which formed the basis of Sussex's complaint. On remand, the record reflects that the Gabors did not present any evidence different from, or in addition to, the evidence previously presented to the trial court on this point. Applying the "law of the case" doctrine, therefore, it was error for the trial court to enter summary judgment on a point previously determined not amenable to a summary judgment. Gabor v. Gabor & Co., Inc., 599 So.2d 737, 739 (Fla. 3d DCA 1992); see also United Auto. Ins. Co. v. Comprehensive Health Or., 173 So.3d 1061, 1066 (Fla. 3d DCA 2015) (entry of summary judgment, which was affirmed on appeal, precluded trial court readdressing the same issue on remand); Wallace v. P. L. Dodge Meml Hosp., 399 So.2d 114, 115 (Ha. 3d DCA 1981) (holding that the appellate court's determination that there were genuine issues of material fact as to a claim constituted law of the case on remand). Therefore, for the reasons stated above, this Court is obligated to deny Epstein's Motion for Summary Judgment based upon the law of the case doctrine, and there is no need to even 5 EFTA00613505 hear argument on it. This Court previously ruled on this precise issue and the Fourth District upheld its determination. Wherefore, for the reasons stated above, Edwards requests that this Court strike Epstein's Motion for Summary Judgment. I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list, by email, on September 25, 2017. Jack Scarola, Esq. SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 WM, BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite 350 444 West Railroad Avenue FL 33401 Attorneys for Bradley J. Edwards By:/s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. 285862 By:/s/ Nichole J. Segal NICHOLE J. SEGAL Florida Bar No. 41232 /kbt 6 EFTA00613506 SERVICE LIST Epstein v. Rothstein/Edwards Case No. 502009CA040800XXXXMB W. Chester Brewer, Jr., Esq. W. CHESTER BREWER, JR., P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 Attorneys for Jeffrey Epstein Fred Haddad, Esq. FRED HADDAD, P.A. 1 Financial Plaza, Ste. 2612 Attorneys for Jeffrey Epstein Mark Nurik, Esq. LAW OFFICES OF MARC S. NURIK 1 E. Broward Blvd., Ste. 700 Fort Lauderdale. FL 33301 Attorneys for Scott Rothstein Jack Goldberger, Esq. ATTERBURY, GOLDBERGER & WEISS, P.A. 250 S. Australian Ave., Ste. 1400 O1 Attorneys for Jeffrey Epstein Tonja Haddad Coleman, Esq. TONJA HADDAD, P.A. 5315 SE 7th Street., Ste. 301 Fort Lauderdale, FL 33301 ttorneys or e rey pstein Bradley J. Edwards, Esq. FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 N. Andrews Ave., Ste. 2 7 EFTA00613507 1 IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff, -vs- SCOTT ROTHSTEIN,.individually, and BRADLEY J. EDWARDS, individually, Defendants. TRANSCRIPT OF HEARING PROCEEDINGS COPY DATE TAKEN: Monday, January 27, 2014 TIME: 3:00 p.m. - 4:23 p.m. PLACE: Palm Beach County Courthouse 205 N. Dixie Highway Courtroom 9C West Palm Beach, FL 33401 BEFORE: Donald Hafele, Circuit Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported by: Robyn Maxwell, RPR, FPR, CLR Realtime Systems Administrator www.phippsreporting.com 888 811-3408 001211 Exhibit A EFTA00613508 1 2 3 APPEARANCES: On behalf of the Plaintiff: 4 W. CHESTER BREWER, JR., P.A. 250 South Australian Avenue 3 Suite 1400 West Palm Beach, FL 33401 6 561.655.4777 BY: W. CHESTER BREWER, JR., ESQUIRE [email protected] 7 8 ATTERBURY, GOLDBERGER & WEISS, PA 9 250 South Australian Avenue Suite 1400 10 West Palm Beach, FL 33401 561.659.8300 11 BY: JACK A. GOLDBERGER, ESQUIRE [email protected] 12 13 TONJA HADDAD, PA 315 SE 7th Street 14 Suite 301 Fort Lauderdale, FL 33301 15 954.467.1223 BY: TONJA HADDAD COLEMAN, ESQUIRE [email protected] 16 17 On behalf of Bradley J. Edwards: 18 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 19 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 20 561.686.6300 BY: JACK SCAROLA, ESQUIRE 21 [email protected] BY: WILLIAM B. KING, ESQUIRE 22 [email protected] 23 24 25 2 www.phippsreporting.com 888 811-3408 001212 EFTA00613509 3 1 Thereupon, 2 the following proceedings began at 3:00 p.m.: 3 THE COURT: Good afternoon, everybody. 4 Thark you so much. Have a seat. Welcome. 5 MR. BREWER: Good afternoon, Your Honor. 6 THE COURT: I had the opportunity to read 7 the binder and the materials sent to me by 8 respective counsel. I don't think the case should 9 take two hours. 10 MR. BREWER: No. 11 THE COURT: So what I'm going to ask you to 12 do is kindly tailor your arguments to one-half 13 hour apiece. And the movant may split up the time 14 to save some moments for rebuttal. And I think 15 that should more than adequately deal with the 16 matter. 17 I think the United States Supreme Court 18 heard the Brown vs. Board Of Education and gave 19 20 minutes a side. So if that can be done in that 20 amount of time, I think we can take care of this. 21 And, of course, you all realize and I 22 don't think this has anything whatsoever to do 23 with the matter, but I should let you know that I 24 handled the state claims that involved Mr. Epstein 25 when I was in Division B. So I have a significant www.phippsreporting.com 888 811-3408 001213 EFTA00613510 4 1. amount of familiarity with the claims that were 2 made. However, until I met with Judge Crow 3 involving this case, I had no knowledge whatsoever 4 that a separate and independent action had been brought by Mr. Epstein against the Rothstein 6 entities and Mr. Edwards. So to that extent, I 7 just to want let you know, as you probably already 8 did already know, that I handled those cases I 9 believe to their conclusion, at or near the time 10 that I left that division two years ago or so. 11 Okay. So are you Ms. Haddad? 12 MS. HADDAD: I am. 13 THE COURT: Will you be arguing on behalf 14 Mr. Epstein? 15 MS. HADDAD: No, Judge. I don't have -- 16 Mr. Brewer will be arguing on our behalf because, 17 as you can hear, I have a cold. 18 THE COURT: All right. 19 Mr. Scarola, did you want to say something? 20 MR. SCAROLA: I did, Your Honor. I just 21 wanted to clarify one matter which I believe to be 22 of some significance. 23 THE COURT: Sure. Of course. 24 MR. SCAROLA: And that is Your Honor 25 referenced a claim against the Rothstein entities www.phippsreporting.com 888 811-3408 001214 EFTA00613511 5 1 and that is not the case. 2 THE COURT: It was just Rothstein 3 individually? 4 rat. SCAROLA: It was just against 5 Mr. Rothstein individually. That claim has never 6 really been defended and -- against Mr. Edwards. 7 And the focus of these motions is only on 8 Mr. Edwards' claims for abuse of process and 9 malicious prosecution. 10 THE COURT: The later I knew. My apologies 11 for misstating the number of defendants involved. 12 MR. SCAROLA: No apology necessary, sir. 13 THE COURT: The only defendants involved -- 14 and they may have been voluntarily dismissed 15 without prejudice; is that accurate? 16 MR. SCAROLA: There was a voluntary 17 dismissal of the initial claims brought against 18 Mr. Edwards, that's correct, sir, on the eve of 19 summary judgment hearing. 20 THE COURT: I remember that being written 21 in your papers. 22 MR. SCAROLA: Yes, sir. 23 THE COURT: So is Epstein's claim against. 24 Rot-istein still viable at this juncture? 25 MS. HADDAD: Yes, Your Honor, it is. www.phippsreporting.com 888 811-3408 001215 EFTA00613512 6 TEE COURT: So the dismissed case without 2 prejudice was to -- was as to Mr. Edwards only. 3 MR. SCAROLA: The claims against LM, ono of 4 victims of Mr. Epstein's conduct, those claims are 5 also dismissed. 6 TEE COURT: Okay. Thank you for that 7 clarification. I much appreciate it. 8 Mr. Brewer. 9 MR. BREWER: Yes, sir. Well, first of all, 10 Your Honor, I'm Chester Brewer appearing on behalf 11 of Jeffrey Epstein. 12 We have before you today a motion for 13 summary judgment filed on behalf Mr. Epstein with 14 regard to a counterclaim that was filed by 15. Mr. Edwards. The case is currently set before 16 Your Honor, specially set I might say, for a 17 three-week or proposed three-week trial, and it is 18 currently set for May the 6th of this year. 19 One thing that I did want to talk to the 20 Court about before going into the procedural 21 history is in the package that was provided to you 22 by counsel for Mr. Edwards there is a statement or 23 interview that is with a young lady by the name of 24 [REDACTED]. Now, I don't know whether you 25 have had an opportunity to read it or not. www.phippereporting.com 888 811-3408 001216 EFTA00613513 7 1 THE COURT: I didn't. I saw the reference 2 to Ms. Roberts. Who is she? 3 MR. BREMER: Ms. Roberts was an alleged 4 victim of Mr. Epstein. There was an interview 5 taken of her by Mr. Scarola and I believe 6 Mr. Edwards. There's a transcript of that interview which is neither sworn to nor even 8 signed. It's something that could not be used for 9 any purpose in the trial of this matter, even for 10 impeachment. So if Your Honor has not read it, I 11 won't go into it. 12 TEM COURT: No, I have not read it. I just saw the name [REDACTED] bandied about on 14 several different occasions, so that's all I know. 15 And as you can tell, I didn't know her 16 relationship to the case. 17 MR. BREMER: Okay. Your Honor, the 18 procedural history here is there were a number of 19 claims brought by alleged victims of Mr. Epstein. 20 There were a number of different attorneys that 21 were involved. And a number of different cases 22 were filed both in federal court and in state 23 court on behalf of these alleged victims. The 24 cases proceeded, as you've said, some of them were 25 before you. They have all now -- per my www.phippsreporting.com 888 811-3408 001217 EFTA00613514 8 information, they have now all concluded although 2 there may still be some investigations. 3 THE COURT: Mr. Edwards at his latest 4 deposition indicated that there's still the 5 victim's case that's going on in the federal 6 court. 7 MR. BREWER: Nothing has happened on that 8 for a quite some period of time now. 9 The -- 10 MR. RING: Judge, if I may, in response to 11 your question. I'm not sure what victim's case 12 that's referencing. All -- all of the cases -- 13 THE COURT: This was a federal statutory -- 14 MR. KING: I -- 15 THE COURT: -- that Mr. Edwards indicates 16 he's doing pro bono on behalf of two of the 17 alleged victims. 18 MR. KING: You're correct. 19 THE COURT: In the Epstein matters. 20 MR. RING: That's correct. Sorry for the 21 interruption. 22 THE COURT: That's okay. 23 MR. BREWER: During the course of those 24 cases, there was some rather unusual discovery 25 that was taking place. And it was learned, and I www.phippsreporting.com 888 811-3408 001218 EFTA00613515 9 I'll get into this towards the end of my 2 presentation, but there were a number of things 3 that were learned by Mr. Epstein in and around 4 November of 2009 -- November/December 2009. He 5 filed a lawsuit against Mr. Rothstein, 6 Mr. Edwards, and LM who is one of the alleged 7 victims. One of the counts in that was for 8 malicious -- I believe it's -- he only had abuse 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of process along with some other counts. In response to that complaint, Mr. Scarola on behalf of Mr. Edwards filed a counterclaim. That counterclaim went through several amendments, but the fourth amended counterclaim speaks to two causes of action; that is abuse of process and malicious prosecution. So those are what we're here to talk about today, is abuse of process and malicious prosecution as it relates to Mr. Epstein's original claim against Mr. Edwards. In response to Mr. Edwards' counterclaim, there were a number of affirmative defenses raised, but one of them that was raised was the litigation privilege. And we are here today to talk with you about the litigation privilege and its current state as espoused by the Florida Supreme Court and the Third District Court Of www.phippsreporting.com 888 811-3408 001219 EFTA00613516 :0 1 Appeals and, in fact, the Fourth District Court Of 2 Appeals. 3 THE COURT: One thing I wanted to interrupt 4 you on is this Wolfe case and its current status 3 and the -- I'll call the -- I'll call.it the 6 Edwards side to make things be easier. But the 7 Edwards side has raised the issue that apparently 8 this Wolfe case is still in rehearing and 9 therefore of no precedential value to the court. 10 Mr. King, did you want to speak briefly to 11 that? 12 MR. KING: Yeah. We submitted a notice of 13 correcLion to Judge Sasser the other day who stood 14 in for you on the page extension. 15 THE COURT: Right. 16 MR. KING: We gave her that and asked her 17 to turn that over to you. 18 THE COURT: I didn't get it. 19 MR. KING: Okay. What's actually happened 20 is and it's confusing because Westlaw's whole 21 history on this, and Mr. Brewer also understands 22 23 24 25 this because he ran into the same problem. My reading of the history that Westlaw contains indicates that the mandate has issued but they still use the caveat "this is a Westlaw www.phippereporting.cam 888 811-3408 001220 EFTA00613517 11 1 citation only, it's not in the final published 2 format, and therefore it can be changed at any 3 time." But with the issuance of the mandate, that 4 signifies that it is -- the rehearing is denied 5 and it is now final. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2C 21 22 23 24 2.3 TER COURT: Okay. Thank you for that. I did not know that until right now. MR. BREWER: So let's get into the Wolfe case. That's where we're headed next. And really there's a trilogy of cases. There's the Levin case, the Echevarria case, if I'm somewhere close to pronouncing that correctly, and the Wolfe case. All of them deal with litigation privilege which dates back to 1917. And I think that we are all most familiar with the standard that defamation cases, if the, quote, alleged defamation occurred during the course of a judicial proceeding would be protected by the litigation privilege and no action could be taken on them. Over the years different courts looked at it. There was an attempt -- there were attempts made to determine how far and to which causes of action the litigation privilege would apply. The seminal case now for us, I guess, now is Levin. This was Levin, Mabie suing. It was www.phippareporting.com 888 811-3408 001221 EFTA00613518 12 1 actually a tortious interference case. But the 2 case went up to the Florida Supreme Court. And 3 the issue before them was how far is this 4 privilege or to what causes of action should this 5 privilege apply? 6 And the Levin court came out and said that 7 it would apply to all torts, including the one 8 that was before them which was tortious 9 interference. And that the standard for 10 determining whether the action complained of would 11 be whether that action had some relation to the 12 proceeding, the judicial preceding. 13 Later on the question came up, Well, should 14 that -- it's the -- we've already determined that 15 it applies to all torts. And so, does it also 16 apply to statutory violations or cases involving 17 statutory violations? And that's the Echevarria 18 case, also in front of the Florida Supreme Court, 19 some 13 or 14 years after Levin, and they found, 20 yes, that it does apply to, essentially, all civil 21 judicial proceedings. 22 Now, the issues before us are the 23 litigation privilege as it applies to abuse of 24 process and malicious prosecution. That was all 25 brought to a head in the Wolfe case. In the Wolfe www.phippsreporting.com 888 811-3408 001222 EFTA00613519 13 1 case, the Third District Court Of Appeal was faced 2 with the issue of do the -- does the litigation 3 privilege apply in those two causes of action. 4 The answer was yes. The Wolfe case or the 5 Wolfe court went back and essentially referred back to and analyzed the Levin and Echevarria 7 cases. And that's why I say it's kind of a 8 trilogy. 9 And in the Wolfe case it was determined 10 that this was not -- not only was it privileged 11 for any actions that were related to the judicial 12 process, it was an absolute privilege. 13 Now, in our case, we have exactly the same 14 issue. We've got a complaint that was filed that :5 is alleged in the counterclaim to be malicious 16 prosecution. We also have the pleadings, 17 everything that was filed after the initiation of 18 the judicial pleading -- judicial process. It's 19 claimed to be an abuse of process. 20 In fact, in answers to interrogatories and 21 all of the discovery that has been had from the 22 Edwards side, they have said that the filing of 23 the complaint was in itself it was untrue, the 24 information that was there was untrue; Epstein 25 should have known it was untrue, and that he had a www.phippereporting.com 888 811-3408 001223 EFTA00613520 14 1 bad purpose in filing which was to intimidate or 2 extort Mr. Edwards and his client. 3 That's been put to bed in the Wolfe case 4 because the litigation privilege absolutely 5 applies and is absolute. The Wolfe case states 6 that they could think -- or the Wolfe court stated 7 they could think of no action that would be more 8 related to the judicial process than the filing of 9 a complaint. So a complaint, the filing of the 10 complaint is privileged. 11 Then going back, and then as they related 12 to the Levin case and the Echevarria case, they 13 said anything that was related to the judicial 14 process -- discovery, depositions, 15 interrogatories -- as long as they were related, 16 they were protected by -- the participants were '7 protected by the litigation privilege. 18 They -- in the trilogy, and I forget which 19 one of the cases it was, but they go even further 20 and clarify that the claim "a bad motive" is 21 really irrelevant to these causes of action when you were talking about the litigation privilege. 23 The -- let me see, where am I here? 24 In the Wolfe case it was a motion for 25 judgment on the pleadings. In some of these other www.phippsreporting.com 888 811-3408 001224 EFTA00613521 15 1 cases it was motion for summary judgment. And in 2 all of these cases they found that the litigation 3 privilege barred the causes of action that were 4 being claimed. 5 The argument has been made by the other 6 sides that because Mr. Edwards -- or, excuse me, 7 because Mr. Epstein had no reason to file the 8 original complaint that he filed, that somehow or 9 another the litigation privilege should not apply. 10 And that because he shouldn't have filed the 11 original complaint, everything that he did 12 thereafter was an abuse of process. 13 We would put it to Your Honor that's not 14 the standard as espoused by the Third District 15 Court Of Appeal, the Fourth District Court Of 16 Appeal, or the Florida Supreme Court. The :7 standard is: Did the action have some relation to 18 the judicial proceeding? :9 THE COURT: I think at least in trying to 20 distinguish Wolfe, but at the same time taking a 21 more global approach, the Edwards' side is 22 suggesting that timing and the length of time 23 subsequent to the settlement of the pending claims 24 and his continuing to prosecute the suit more so on the malicious prosecution side would distance www.phipporeporting.com 888 811-3408 001225 EFTA00613522 16 1 itself from Wolfe, because in Wolfe I believe the 2 court made clear that it was a brief prosecution 3 of the action and was not protracted. How do you 4 respond to that concern? 5 MR. BREWER: I respond by quoting the 6 Florida Supreme Court, which is: If the action -- 7 and whether they're talking one action, 20 actions 8 or 40 actions, if the action is related to the 9 judicial preceding, then you have a litigation 10 privilege. THE COURT: And that can go on essentially 12 forever in your mind? 13 MR. BREWER: I don't know that it can go on 14 forever because also they were talking, 15 particularly in the Levin case, about protections 16 that would be afforded to litigants. But those 17 protections would not be through a cause of action 18 for malicious prosecution or abuse of process; 19 rather, it would be through the court with 20 contempt proceedings, perhaps. It would be 21 through the Florida Bar for, you know, 22 inappropriate actions taken by an attorney. It 23 could be perjury for a litigant which would be 24 handled by the state. 25 THE COURT: I don't think perjury. Not if re - www.phippereporting.com 888 811-3408 001226 EFTA00613523 1 2 5 6 it's guised in the litigation privilege, but perhaps you're right that it could be met with 57.105 standards. HR. BREWER: 57.105 was the one I was just getting ready to get to, Your Honor. So there are protections against what you're talking about, but 7 again, I have to go back to what did the Supreme 8 Court tell us. 9 I did want to touch also on another point 10 that was raised in our motion, which is that the 11 Complaint, at least insofar as malicious 12 prosecution, has to fail because there is probable 13 cause demonstrated for Mr. Epstein to have filed 14 or at least have reason to believe that he could 15 file -- properly file the claim that he -- that he 16 did file. 17 TEE COURT: Is probable cause always a 18 legal -- purely legal determination? 19 MR. BREWER: No. No. If there are 20 questions of fact that are involved with the 21 probable cause, the questions of fact are for the 22 determination of the jury. The jury -- the judge 23 then takes those determinations of the jury to 24 make a finding of probable cause. But it is in 25 the -- at the end of the day the court -- the www.phippsreporting.com 888 811-3408 001227 EFTA00613524 18 1 issue of probable cause is a matter of law for determination by the court. But the threshold for establishing' probable cause in a civil action is really rather low. Because it is whether the defendant could have 6 reasonable -- what the -- what the defendant could 7 have reasonably believed at the time of asserting S the claim. 9 So I want to go briefly through what 10 Mr. Epstein knew or was available to him at the 11 time November/December of 2009. :2 First, undisputed, Mr. Edwards was a 13 partner at the Rothstein firm. It's also 14 undisputed and it had been admitted by 15 Mr. Rothstein that this firm was the front for one 16 of the largest Ponzi schemes in Florida history. 17 At the time, Mr. Edwards was the lead attorney for 18 three cases that were being brought by the 19 Rothstein firm against Mr. Epstein. 20 During the litigation there were numerous 21 discovery attempts which appeared to be unrelated 22 to those; and that was trying to get flight 23 manifests, take depositions of people who may have 24 been on flights on Mr. Epstein's planes, some 25 very, very prominent names. And these things were www.phippsreporting.com 888 811-3408 001228 EFTA00613525 19 escalating during that time period. And it was 2 very, very strange. 3' In late November of 2009 there was an 4 explanation as to why those things were going on. 5 And the Rothstein firm imploded. And there was a 6 complaint that was brought by Bill Scherer 7 believe down -- I don't know if it was Broward 8 County or Dade County. 9 TEE COURT: Yeah, I'm familiar with all 10 that. 11 I remember that day. Do you remember that 12 day, Mr. Edwards? 13 MR. EDWARDS: I remember it like yesterday. 14 MR. BREWER: In any event, he filed a 15 complaint on behalf of a group of investors that 16 we refer to as Razorback. And if I can find it. 17 Here we go. One of allegations in the complaint 18 in Razorback was, additionally, "Rothstein used 19 RRA's representation in the Epstein case to pursue 20 issues and evidence unrelated to the underlying 21 litigation but which was potentially beneficial to 22 lure investors into the Ponzi scheme." 23 TSB COURT: You -- five out of the six of 24 25 you know me very well, receptive to argument. and I always am very You guys know that. The www.phippsreporting.com 888 811-3408 001229 EFTA00613526 20 1 only one is Ms. Haddad. I think -- I'm not sure 2 if we met before. But I just feel like the 3 probable cause aspect just carries with it too 4 many factual issues for me to rule as a matter of 5 law, so I don't think that I can grant relief on 6 the probable cause issue vel non. So if you will, 7 please move on to -- 8 MR. BREWER: On that note, because I was -- 9 I will close. 10 THE COURT: Okay. Thank you very much, 11 Mr. Brewer. 12 MR. BREWER: No, I will close by -- 13 THE COURT: On that issue? 14 MR. BREWER: I will close on that issue. 15 THE COURT: Very well. 16 MR. BREWER: But I would like to close by 17 quoting a very prominent attorney. 18 TEE COURT: Sounds like a plan. 19 MR. BREWER: This is something that was 20 before Judge Crow. 21 And it begins out of the attorney saying, 22 "Tab 4, Levin vs. Middle -- Levin vs. Middlebrook 23 is the Tab No. 18?" 24 Judge Crow says, "I read it a thousand 25 times." www.phippsreporting.com 888 811-3406 001230 EFTA00613527 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The attorneys says, "Yes, sir, I'm sure you have." "THE COURT: You have to give it to me again, though." ATTORNEY: "I will be happy to do that." •• "THE COURT: This deals with the litigation privilege?" The attorney then goes on to say, "Yes, sir, it does deal with litigation privilege. Echevarria also deals with the litigation privilege. Delmonico stands for the proposition that the issues with regard to privilege are some issues of law for the court to determine. And I provided Your Honor with highlighted copies. I'm providing opposing counsel with highlighted copies as well. "THE COURT: Okay." TEE ATTORNEY: "Basic point here, Your Honor, is that the litigation privilege is an absolute privilege. Once it is established that the actions occur within the course and scope of the litigation, the privilege applies absolutely as a matter of public policy. "The basis of those decisions, that if there's misconduct in the course of litigation -- www.phippsreporting.com 888 811-3408 001231 EFTA00613528 22 1 if you're talking about improper discovery, if 2 you're filing improper motions -- there are 3 remedies that are available to the court through 4 the court's inherent power to control its own 5 litigation; through the contempt powers of the 6 court through Florida Statute 57.105, and through 7 the filing of bar grievances. And it will cripple 8 the system if litigants are obligated to respond 9 to separate litigation just because somebody has 10 alleged you noticed the deposition that shouldn't 11 have been noticed. You filed a motion that 12 shouldn't have been filed." 13 That prominent attorney is Mr. Scarola. 14 THE COURT: In an unrelated case? 15 MR. BREWER: In this case. In this case 16 when they were arguing that Mr. Edwards was 17 entitled to the litigation privilege with regard 18 to Mr. Epstein's complaint. 19 TEE COURT: Okay. Who -- 20 Off the record for a minute. 21 (Discussion off the record.) 22 THE COURT: Okay. Mr. King, please. 23 MR. KING: Thank, Your Honor. William King 24 and Jack Scarola, Your Honor, for Mr. Edwards who 25 is seated with us at the table. www.phippsreporting.com 888 811-3408 001232 EFTA00613529 23 May it please the Court. 2 THE COURT: Please. 3 MR. RING: In light of the Court's ruling 4 on the probable cause issue, I am not going to get 5 into all of the facts with which we did not have 6 an opportunity to identify in detail. I'll simply 7 say to the Court that there still exists the issue 8 of the bona fide determination they have not 9 raised here today. And so, the submission of the 10 facts that we have submitted, that we've prepared 11 for you, would bear on that unless they have -- 12 likewise, because of factual disputes, they're 13 basically taking the position that is no longer -- 14 that's no longer an issue either for purposes of 15 this summary judgment. 16 Pursuant -- 17 THE COURT: Let me stop you, Mr. King, so 18 that you're not confused by my preliminary 19 statements to Mr. Brewer. And that is, that the 20 global issue that's covered by, as Mr. Brewer puts 21 it, the trilogy of cases, the Levin, Echevarria, 22 and now this Wolfe case is not being disposed of 23 or is not being ceded by Mr. Brewer here. They're 24 still claiming that both counts are covered by the 25 Wolfe, Levin, and Echevarria cases. www.phippsreporting.com 888 811-3408 001233 EFTA00613530 24 1 My statement is only if, in fact, those 2 cases are, and now the Wolfe case which is now, in 3 my view, on point relative to both abuse of 4 process and malicious prosecution claims globally, if that case for some reason doesn't cover that, 6 then the elements of the malicious prosecution 7 claim are off the table. In other words, I would not grant the motion because of at least those two reasons; that is that I believe that there are • kJ questions of fact related to the probable cause 11 issue, as well as the bona fide determination 12 issue additionally. 13 MR. RING: And I understand the Court's 14 ruling in that regard. 15 THE COURT: Okay. :6 MR. KING: My only point was they raised in :7 their initial brief an issue of whether there was 18 a bona fide termination. That, likewise, is very 19 fact specific. 20 TER COURT: I agree and that's why I want 21 to make clear that that standing alone, the 22 elements of the malicious prosecution claim as 23 opposed to the abuse of process claim, which I 24 will handle separately, will not muster in summary 25 judgment in my view. www.phippsreporting.com 888 811-3408 001234 EFTA00613531 25 1 MR. KING: Thank you. 2 Then let me focus, then, on the litigation 3 privilege, Judge, since that's the key issue that 4 the Court is dealing with today. 5 THE COURT: Thank you. 6 MR. KING: It is our position that a 7 conflict currently exists with regards to the 8 issue whether the litigation privilege bars a 9 malicious prosecution claim. And 2 have cited to 10 the case Olson vs. Johnson, 961 So2d. 356, the 11 Second DCA's opinion in 2007, after both Levin and 12 Echevarria. And it holds that malicious 13 prosecution claims are not barred by the 14 litigation privilege. 15 Then you have Wolfe that stands in 16 contradistinction to that which holds that it 17 does. Although, as I'll point out in a few 18 moments, one of -- Judge Shepherd in his 19 concurring opinion doesn't -- he doesn't rely on 20 that, on that theory. 21 Our position is that Olson vs. Johnson sets 22 forth the accurate and more persuasive 23 proposition; that is that it does not bar a 24 malicious prosecution claim. Even though Olson 25 vs. Johnson dealt with complaints by a complaining www.phippareporting.com 888 811-3408 001235 EFTA00613532 26 1 witness in a case that only resulted in a 2 malicious prosecution claim leading to a wrongful 3 arrest, doesn't -- the facts of the case itself do 4 not go so far as to address issues of what happens 5 once a civil complaint is filed. But the 6 proposition that that Olson states is unequivocal; 7 that is the litigation privilege does not apply to 8 malicious prosecution. 9 Now, when we get to Judge Sasser's opinion, 10 which I submit in all of the cases that have been 11 cited by everyone, Judge Sasser's opinion is the 12 most 13 very 14 case 15 16 17 18 19 MR. KING: That is the decision in -- bear 20 with me, Judge. 21 THE COURT: No problem. 22 MR. KING: That is the decision in Johnson 23 vs. Libow, a 2012 -- Westlaw 4068409 in 2012. 24 THE COURT: Okay. 25 MR. KING: It is concise. It's to the cogent, most well-reasoned, and rejects those propositions that two judges in the Wolfe adopt. So let me -- let me just suggest to the Court -- THE COURT: Which Judge Sasser? I'm trying to figure out which one you are talking about. www.phippsreporting.com 888 811-3408 001236 EFTA00613533 27 1 point. And I'll address that in just a few 2 moments. 3 THE COURT: All right. Thanks. 4 MR. KING: Now, what's interesting about 3 Wolfe, and what's almost inexplicable about Wolfe, 6 is that it ignores its own prior precedent by 7 Judge Cope in his concurring decision in Boca 8 Investors Group vs. Potash, 835 So2d. 273. 9 THE COURT: That was a concurring opinion? 10 MR. KING: Yes, that was his concurring 11 opinion. 12 THE COURT: Okay. 13 MR. KING: Of course, as you know, 14 Cudge Cope is very well-respected and his opinions 15 are very articulate, but it also ignores a 16 Third DCA's full panel's decision in SCI Funeral 17 Servcies Inc. vs. Henry, 839 So2d. 702 at Note 4, 18 Third DCA opinion in 2000, both of which both 19 Judge Cope and the panel in the SCI case note that 20 the Supreme Court's citation in Levin to Wright 21 vs. Yurko, which I cited in the memorandum, which 22 was a Fifth DCA decision back in 1984, implicitly 23 24 25 recognizes -- that is the Supreme Court itself implicitly recognizes that malicious prosecution claims are not subject to the litigation www.phippsreporting.com 888 811-3408 001237 EFTA00613534 28 1 privilege. 2 And if you read Wright vs. Yurko, you read 3 Judge Cope's concurring opinion, and you read the 4 panel's footnote in SCI, one should not come up 5 with any other conclusion other than that's what 6 the Supreme Court did. So you have Wolfe standing 7 in contradistinction to its own -- to its own 8 precedent, which they don't address at all in Wolfe, and it stands importantly in 10 contradistinction to the Supreme Court's own 11 position on that -- on that doctrine. 12 I -- I would dare say that the Third 13 District will always stand alone on that 14 proposition. Any other district court which is 15 1.6 17 18 19 20 21 22 23 24 25 going to undertake this issue will not follow that ruling. And the Supreme Court itself, if it ever gets on the cert's jurisdiction, will not either. Other courts have likewise commented that the litigation privilege would not bar a malicious prosecution claim. I have cited you to the decision of Judge Corrigan in North Star Capital Acquisition, LLC vs. Krig, 611 F.Supp.2d 1324 (M.D. Fla. 2009), another decision that was decided after Levin and Echevarria. And the court in that case discussed -- let me just for a moment www.phippereporting.com 888 811-3408 001238 EFTA00613535 29 1 here -- 2 Well, the bottom line is Judge Corrigan 3 commented about the litigation privilege and 4 stated that neither malicious prosecution nor 5 abuse of process would be barred by the litigation 6 privilege. 7 I have also cited the Cruz vs. Angelides, 8 the Middle District of -- I'm sorry, 9 574 Sold. 278, Second DCA 1991, which also 10 suggests that malicious prosecution would not be 11 barred by the litigation privilege. 12 But as I've indicated, the most cogent and 13 well articulated opinion on this subject is 14 Judge Sasser's opinion in Johnson vs. Libow. She 15 16 17 18 19 20 21 22 23 24 25 expressly revoked the arguments that are raised by Wolfe, which arguments, of course, are opposed by the assertion in Olson. The court noted the following -- and these are the very compelling reasons why Wolfe would not apply to a malicious prosecution claim. As she said, "Levin involved actions taken during the course of proceedings" and as you remember what Levin was; that was a situation where there was a motion to disqualify counsel. Then ultimately, when they didn't call counsel, www.phippsreporting.com 888 811-3408 001239 EFTA00613536 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 30 they filed a separate interference claim and the court barred that on the litigation privilege. But the court stated that when you're dealing with the malicious prosecution lawsuit, it's fundamentally different. It involves the filing of a baseless action against a defendant. And the purpose of a malicious prosecution action is to prevent vexatious prosecution or litigation. "The purpose of the litigation privilege," she stated expressly, "is not to preclude the tort of malicious prosecution. And if the litigation privilege was applicable to the filing of a suit, the tort of malicious prosecution would not survive." And as the Court is well aware, the malicious prosecution has been recognized as 17 it's an ancient tort in Florida. It's always been 18 around. The Supreme Court has addressed it in the 19 past specifically. And one cannot lightly accept 20 the proposition that the Supreme Court, which 21 itself has indicated -- implicitly indicated at 22 least that the litigation privilege would not bar 23 a malicious prosecution claim. That the Supreme 24 Court itself would not adhere to the those rulings 25 and overturn a century of law recognizing the tort www.phippsreporting.com 888 811-3408 001240 EFTA00613537 31 1 of malicious prosecution. 2 We also submit that Wolfe is 3 distinguishable because the litigation privilege 4 was applied to the attorneys in that case. The 5 attorneys were involved, and I need not go over 6 all of the facts of the case, but it was a very, 7 very brief involvement by the lawyers. As I 8 suggested in the brief, lawyers may end up being 9 given a broader immunity under the litigation 10 privilege because of their obligations to their 11 clients to carry out their legal and ethical 12 responsibilities. 13 And the facts of that case are somewhat 4 compelling in that the attorneys who make a brief 15 appearance shouldn't be exposed to a:: of this. 16. Maybe their -- maybe the thought process was 17 something along the lines, well, we don't want to 18 put the attorneys through this. This should be 19 cut out right at the beginning. 20 THE COURT: Off the record for one second. 21 MR. KING: Yes. 22 (Discussion off the record.) 23 MR. KING: And I cited the Taylor case, 24 which was a Supreme Court of Idaho decision, which 25 discusses that issue and which shows that for www.phippereporting.com 888 811-3408 001241 EFTA00613538 32 1 those very reasons that I identified, lawyers 2 should have a greater opportunity to -- 3 opportunity to seize upon immunity which would cut 4 off their liability early on. So whether it's a 5 qualified immunity or absolute immunity discussed 6 in that decision, whatever, perhaps that was 7 the -- a factor or although they don't cite to 8 Taylor, but maybe that's a factor in Wolfe. 9 THE COURT: I guess I understand your 10 position that you're taking in terms of in the 11 Wolfe context, because as I indicated to 12 Mr. Brewer during his argument, the court made it 13 a point to indicate the very brief involvement of 14 the Kenny Knachwalter firm. But since I did ask 15 Ty question off the record, I'll indicate what I :6 did ask was whether or not Mr. Epstein was :7 represented at all times material to the 1.8 allegations now made by Mr. Edwards. And Mr. King 19: has answered in the affirmative. 20 I'm having difficulty then with trying to 21 reconcile why the claim was only brought against 22 Mr. Epstein as opposed to his attorneys, 23 especially where the emphasis has been made quite 24 strongly that despite the settlements that went on 25 Epstein, essentially himself as related to the www.phippsreporting.com 888 811-3408 001242 EFTA00613539 33 1 court, was the guiding influence here in 2 proceeding against Mr. Edwards in a -- for a -- 3 for a time period.that you believe is actionable. 4 fait. KING: Well, one response, without going into the entire tortured history of 6 Mr. Epstein's actions and the various machinations 7 that he undertook, the initial complaint which 8 charged Mr. Edwards with all sorts of horrific 9 crimes -- fraud, perjury, conspiracy to commit 10 perjury, securities fraud, general fraud, 11 extorsion, all -- all specific crimes that were 12 alleged against him, the lawyers who were involved 13 in that case withdrew. They abandoned those 14 claims. 15 Well, we can't ask them why, but I submit 16 that what happens is the evolution of that case 17 then becomes a case involving merely -- I 18 shouldn't say merely abuse of process, abuse of 19 process. So one response is that's a situation 20 that -- that you -- that is sort of suggested by, 21 22 23 24 25 perhaps, the court in Wolfe and in desiring to protecting lawyers who recognize what happened and then get out of the case. They realize that whatever they were told by their client, and we submit that, for example, www.phippsreporting.com 888 811-3408 001243 EFTA00613540 34 1 the attorneys would not necessarily know what 2 Mr. Epstein had in his mind. We know what Epstein 3 had in his mind because I have outlined somewhat 4 in the papers here the huge amount of evidence 5 accumulated by not only Mr. Edwards but the 6 federal government, by the state government which 7 showed that not only was -- did he abuse 8 Mr. Edwards' clients repeatedly from the time they 9 were 14 and 15 years old, he was abusing girls as 10 young as 12 years old. He was having -- he was 11 having orgies on his airplane, one of those 12 indications that they may have had reference to in 13 their papers and earlier made reference here about 14 why was discovery pursued by Mr. Edwards. 15 But they -- the lawyers are just not -- A, 16 they're not. sued. That's not a situation that 17 we're facing here. 18 THE COURT: I know that. 19 MR. KING: And for the very reasons that 20 Taylor talks about, it's just unwise, it seems to 21 me, to pursue lawyers in a case where you may know 22 23 24 25 inside what's going on with Epstein and why he's doing what he's doing. And that's a fine line that the lawyers have to face in every case; when do I step out? www.phippsreporting.com 888 811-3408 001244 EFTA00613541 35 1 The original lawyers in this case did step out. 2 And those claims were all abandoned. And I think 3 that speaks volumes. All of that, of course, goes 4 in part to the issues of malicious prosecution, 5 which we would ultimately argue if I had to get 6 into those facts. 7 I hope that answers your question. I mean, 8 Epstein stands in our -- from our standpoint, in a 9 completely different position than the lawyers at 12 this stage of the proceedings despite the fact that after he settles the claims he then continues 12 to pursue the allegations. 13 And to us, your review of the size of those 14 settlements would have an impact on all of the 15 issues, not on this particular issue that we're 16 talking about now. But if we had to get into 17 those facts and the court took a look at what 18 those settlements were in camera, then we would 19 believe that that would be -- that's a strong 20 indication that all of this stuff that he seized 21 upon, that Edwards seized upon -- 22 I . BRINZR: Excuse me, Your Honor. Motion 23 For Summary Judgment is supposed to be something 24 that is in evidence and in record and it's not. 25 TEE COURT: Yeah, I have no plans on www.phippsreporting.com 888 811-3408 001245 EFTA00613542 36 1 reviewing the size of the settlement amounts. 2 They don't phase me at all. And I -- I don't -- 3 it seems since they agreed to be confidential, I 4 think we should respect that. 5 MR. RING: And I understand, and since 6 we're not even discussing these, and I may be 7 going further than what your concerns were about 8 the lawyer's involvement in the case and why they 9 wouldn't be sued in a case like this. 10 TER COURT: What I'm saying is I can 11 understand both sides' argument. But on the one 12 hand, it's interesting that the line of cases here 13 on this immunity issue often bears on the facts of 14 the cases. Meaning, the most repugnant they 15 take -- there's a more liberal approach. The 16 Wolfe case where the Kenny Knachwalter firm 17 abandoned the claims immediately, there's a more 18 conservative approach. And I tend to -- tended -- 19 tended to notice that while I was reviewing the 20 cases, which is understandable, certainly. 21 But the -- the -- what I said about both 22 sides is, yes, I can see in a situation where the 23 24 25 attorneys quickly abandoned the case there's the indication that a claim would not lie. However, where I -- where I have the representation made www.phippsreporting.com 888 811-3408 001246 EFTA00613543 37 1 without controvert that Epstein was represented 2 throughout the process, so to speak, even after 3 the settlements were effectuated, but represented 4 nonetheless by counsel, I can also see the other 3 side where it could -- it could weaken the 6 argument that Epstein would be at the control so 7 to speak. 8 MR. RING: Well, it -- it's our position 9 that the mass of evidence which we have, some of 10 which I just outlined, reflects that Mr. Epstein 11 seized upon a convenient situation, the RRA 12 implosion, to use that as a sword against 13 Mr. Edwards. And it became -- it was personal 14 with him, and he knew that the allegations against 15 him by not only his own clients were true. Ana as 16 you know, ultimately, what happens is the 17 attorneys dismiss the case on the eve of the 18 Motion For Summary Judgment. And -- 19 Mr. Scarola corrects me. I wasn't in in 20 those the earlier stage, but he indicates that two 21 sets of lawyers got out. 22 THE COURT: That's okay. That's fine. 23 MR. KING: But in any event, then on the 24 eve of the summary judgment motion we submit that 25 the last set of lawyers gets out because -- they www.phippsreporting.com 888 811-3408 001247 EFTA00613544 38 1 2 3 withdraw those claims or dismiss those claims because they are faced with the knowledge that they couldn't uncover one iota of evidence that 4 Mr. Edwards was guilty of anything. His name 5 6 7 8 never appeared in the public, in any public documents were filed. They took his deposition for days. They have never been able to uncover one piece of evidence that would remotely suggest 9 that he was involved. So the bottom line is -- I 10 really probably have gone further than the 11 Court -- 12 THE COURT: No, not at all. 13 MR. KING: -- and I apologize for that. 14 THE COURT: I just want to give you a 15 ten-minute warning now, but -- 16 MR. KING: All right. 17 TUE COURT: Don't these cases, though, 18 teach us that essentially no matter how repugnant 19 the judicial conduct process -- the conduct during 20 the judicial proceedings, I should say, no matter 21 how far repugnant the conduct during the judicial 22 proceedings may be, as long as they are within the 23 judicial proceeding there is this immunity that 24 exists, particularly for an abuse of process 25 claim? www.phippsreporting.com 888 811-3408 001248 EFTA00613545 39 1 2 3 4 5 6 7 The malicious prosecution claim I am more on the fence. But on, as far as the abuse of process claim is concerned, and there's that balancing that is taken into account that I believe it's talked about primarily in the Levin case about the full disclosure within the lawsuit venue versus someone facing liability because of 8 what may be alleged in a complaint or during a 9 deposition or something along those lines. As 10 long as it's within the judicial proceeding, and, 11 again, no matter how repugnant it may be, is there 12 not this immunity afforded by the appellate courts 13 that would extend at least to the abuse of process 14 claim? And tell me, if not, why not, please. 15 MR. ICING: We acknowledged in the memo that 16 both in the Third and the Fourth -- in the Fourth 17 in the American National Title Case, both applied 18 the doctrine to the abuse of process claim. 19 The full import of how far that will go 20 because each of those cases again involved 21 lawyers. But the question is: Will that in the 22 future -- because, again, that tort, abuse of 23 process, has been around a long time. But the 24 American National case was 1999. And also the 25 LatAm case, which was a precursor to Wolfe on that www.phippsreporting.com 888 811-3408 001249 EFTA00613546 40 1 issue, the litigation privilege and the abuse as 2 it applied to the abuse of process, that case was 3 cited by Wolfe. 4 So you had -- you had some rational prongs 5 that Wolfe could latch onto in terms of the issue 6 of the application of litigation privilege to 7 abuse of process. And we would distinguish it 8 on -- we would distinguish those cases based on 9 the fact that lawyers only were involved. 10 We would also maintain that that -- 11 THE COURT: I guess, Mr. King, what it 12 comes down to is, shouldn't lawyers know better 13 14 15 16 17 18 19 20 21 22 23 24 25 than the litigants themselves? And, again, if -- I would be a bit more receptive to your argument if I was told Epstein filed these documents pro se. Because he is at least, you know, to a degree an educated individual. He has a background, I believe, in finance. So, you know, there could be those facts that could be developed within his educational purview, within his experience purview, within his own personal vendettas that he may have with Mr. Edwards. But, again, shouldn't lawyers know better? The lawyers are continuing this plight on behalf their client. Why is Epstein the one who is the www.phippsreporting.com 888 811-3408 001250 EFTA00613547 1 focal point of this abuse of process claim? 2 MR. KING: And, again, I would go back to 3 the role that lawyers have in walking that ethical 4 line, walking that legal line, walking the 5 line where they have to advance their client's 6 cause as best they can. And when it comes to that 7 point where they recognize that, no, these claims 8 are false, there's no basis for us to proceed, then they get out. :0 And now, as I'm advised, two firms did that 11 before. The last firm came in and dropped 12 their -- dropped those claims on the eve of 13 summary judgment. 14 So one, to me, as -- I shouldn't say that. 15 To -- to Mr. Edwards in this particular case we 16 see a clear distinction. And that distinction is 17 18 19 20 21 22 23 24 25 you don't go after the lawyers for these claims if you recognize that there is a -- that they have acted within the bounds of arguably of their ethical responsibilities and legal responsibilities to their client. They have to zealously advocate for him. But that doesn't excuse him. That doesn't excuse an individual who over all those years were committing those heinous acts against not only Mr. Edwards' clients, but www.phippereporting.com 888 811-3408 001251 EFTA00613548 42 1 many, many others. 2 THE COURT: But those heinous acts as have 3 you communicated, and I won't take a position one 4 way or the other on the acts, but I'm just picking 5 up on what you just said, but they have nothing to 6 do with this case itself on the claims of abuse of 7 process and malicious prosecution. They just 8 simply don't. I mean, you may suggest to me that 9 they have something to do with them from the 10 standpoint of Epstein's dissatisfaction with the 11 settlement or whatever may have been attributed to 12 that, but they really have nothing to do with 13 these claims. 14 MR. KING: Well, with the litigation 15 privilege I will acknowledge other than what I 16 have already argued the situation was different 17 wherein, in, for example, Wolfe he had the brief 18 appearance by the lawyer and Judge, it was -- 19 Judge Shepherd, in his concurring opinion, didn't 20 embrace that. What he said was, Look, there's two 21 elements, and malicious prosecution doesn't even 22 exist here. Let's get rid of it. 23 THE COURT: Right. 24 MR. RING: I would just suggest that the 25 facts that I have outlined, and which we have in www.phippsreporting.com 888 811-3408 001252 EFTA00613549 43 1 all of the materials that we submitted to you, all 2 of those facts are -- they -- they do go to the 3 other issues that you aren't addressing here; the 4 factual issues on good faith and the factual 5 issues on bona fide termination. 6 And so with that reservation, I would 7 suggest that the only other reason why these facts 8 are so significant is because anybody sitting -- a 9 court sitting back and looking at the landscape 10 here would have to ask themselves, look, in light 11 of -- for example, Judge Sasser's opinion, and the 12 reasons why we have malicious prosecution claims 13 and why they would survive is because of something 14 just like this. And I'm getting back to the 15 litigation privilege and malicious prosecution. 16 I really have ended my comments on that but 17 I just wanted to address your concerns about why 18 all of these facts might impact. 19 THE COURT: No. Go right ahead. 20 MR. KING: And those facts impact because 21 what it does is it cries out and it shows you that 22 this is why a malicious prosecution claim should 23 survive the litigation privilege. When you have a 24 torrent of evidence that he's comitted these acts 25 and that he knows that the attorney for those www.phippsreporting.com 888 811-3408 001253 EFTA00613550 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 clients has acted appropriately and at every stage he was involved before he ever got associated -- before Mr. Edwards ever got associated with RRA and he continued them on after he did it. He does pro bono work for clients, as you know, in the federal case. He knows that. Epstein knows that. And that's why the facts are important to malicious prosecution claims because, as Judge Sasser says, the idea here, the concept here on a malicious prosecution claim is, this is -- this is the kind -- this is why the privilege shouldn't apply, because the vexatious prosecution of a claim is will recognize. And everything that something that the law we have put into the record about Epstein's involvement shows that this use of that lawsuit was a pretext. And that he had every evil motive in the world to pursue these claims and continue those claims after Mr. Edwards settled those claims -- Mr. Epstein settled those claims. So my only other comments is to try to address your concerns vis-a-vis the issue of abuse of process. That's more difficult. It's more difficult because we have the Fourth's opinion and www.phippsroporting.com 888 811-3408 001254 EFTA00613551 45 1 the Third's precursor opinion, so it -- it -- it 2 clearly is problematic. 3 We our -- our position on it is essentially 4 this: Judge Corrigan in his opinion in the case 5 that I cited says the privilege shouldn't apply 6 either. Then you have what we submit are 7 egregious facts which should -- including a 8 settlement and he continued prosecution 9 afterwards, which we submit it is going to be 10 the light's going to go loff and say, Whoa, wait a 11 minute, we can't -- we can't count this the 12 application of privilege in the context of these 13 facts. Your concerns are legitimate and well 14 expressed. No matter how egregious the facts, 15 perhaps that won't make a difference to the 16 application of the privilege to -- to an abuse of 17 process claim, perhaps. 18 But we submit for the reasons that we have 19 identified that the litigation privilege should 20 equally not apply to the abuse of process claim 21 for those reasons. 22 THE COURT: Malicious prosecution. 23 lit. KING: Okay. Well, certainly to 24 malicious prosecution. But also your last 25 concern -- www.phippareporting.com 886 811-3408 001255 EFTA00613552 46 1 THE COURT: Your position is I think it 2 does apply to abuse of process. 3 MR. BREWER: Right. 4 MR. KING: But certainly not malicious 5 prosecution for the reasons that are 6 well-articulated by Judge Sasser and others. And 7 with regard to the reasons I've just expressed to 8 the abuse of process claim. 9 And make sure I didn't miss anything -- 10 THE COURT: Threo minutes to wrap up. 11 MR. SCAROLA: And I'm going to use two of 12 them, if I may, Your Honor. 13 THE COURT: Any objection? 14 MR. BREWER: Yes, Your Honor; They're not 15 allowed to split. This is not, you know, a 16 rebuttal on their part. 17 THE COURT: I agree. 18 MR. BREWER: So they're not allowed to 19 split it. 20 MR. SCAROLA: May I have just a moment? 21 THE COURT: Absolutely. Take your time. 22 But I do believe that protocol would dictate only 23 one attorney speak to the issues. 24 MR. KING: Right. 25 THE COURT: Thank you. www.phippsreporting.com 888 811-3408 001256 EFTA00613553 47 I have Judge Sasser's opinion. I have it right here or, I should say, her order as opposed to the opinion. MR. KING: All right. You have that. And just to wrap up then, Judge, with regard to the comments in Levin about the other -- the availability of other remedies that are -- that would exist against attorneys if the -- you know, if the privilege were not applied to the attorneys as in Levin, there are a myriad that the court 11 has. Much more difficult when it comes to an 12 individual. And I -- I think there was one other 13 comment made. Let me just double-check my notes. 14 Counsel had referenced the abuse of process 15 claim and whether the facts support the abuse of 16 process claim. We submit from that standpoint 17 they do. We've satisfied all of the elements. 18 They -- they -- and the last comment I'll 19 make here is their focus was you can't have an 20 abuse of process claim based upon the pursuit of 21 all of these actions that were taken during the 22 course of the proceedings. And we submit that 23 under the circumstances of this case, where this 24 claim was commenced against Mr. Edwards during the 25 course of his prosecution of the underlying claims www.phippsreporting.com 888 811-3408 001257 EFTA00613554 48 1 and while multiple other claims were being pursued 2 against him, that under those circumstances the 3 abuse of process claim does survive a challenge to 4 whether or not we have satisfied the elements. 5 The process that's involved in the abuse of 6 process claim is the lawsuit. The subsequen_ 7 actions that all of the cases talk about are, it 8 our case, the pursuit of all of those efforts 9 during the course of the -- of that case. And 10 they were all done for an ulterior motive. We've 11 satisfied those elements. 12 I don't have the time to get into all of 13 the facts. I tried to give you the essence of 14 what we had by citing to the statement of 15 undisputed facts, Mr. Edwards' affidavit, the 16 materials relating to the filing of our motion for 17 punitive damages which was granted. We gave you 18 the depositions because, unfortunately, to really 19 grasp the entire background on this, you almost 20 have to read the entire depos. I tried 21 highlighting and pulling them out for you, but I 22 couldn't really do that. So I apologize. 23 THE couRT: No, that's okay. 24 MR. KING: But that would end my argument. 25 I appreciate your courtesy. www.phipporeporting.com 888 811-3408 001258 EFTA00613555 49 1 THE COURT: Thank you and Mr. Brewer for 2 your -- 3 MR. BREWER: A few moments, Your Honor? 4 THE COURT: Sure. 5 NR. BREWER: I forgot to ask you if I could 6 address you from the chair here rather than the 7 podium. 8 THE COURT: That's fine. 9 No, I wanted to thank Mr. King and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Brewer for their initial arguments, and I appreciate very much the professional. MR. BREWER: Your Honor, you seemed to be a little bit more troubled with regard to the malicious prosecution aspects here. I'd like to point out to you that in the case, the Wolfe case, specifically they stated "because the law is clear that the litigation privilege applies to abuse of process, we affirm the trial court's order granting judgment on the pleadings in favor of the defendants below as to that cause of action. Although the law is not as clear whether the litigation privilege also applies for the cause of action for malicious prosecution, we conclude that it does and affirm the trial court's order finding that the litigation privilege also applies to a www.phippsreporting.com 888 811-3408 001259 EFTA00613556 50 1 2 3 4 5 6 7 8 9 10 11 sliding scale. And if you worked longer on the 12 case, or if you put in more pleadings or whatever, 13 that somehow or another that would have an effect. 14 That's not something that I have seen 15 anyway in the trilogy of cases. In fact, what is 16 said in the trilogy of cases is if the litigation 17 privilege applies, it's an absolute privilege. 18 Absolute. 19 The Olson vs. Johnson was mentioned to you 20 to say that to indicate that the -- that malicious 21 prosecution can still survive and exist. And, in 22 fact, the Olson case, which was a case in which 23 three ladies accused this guy of stalking, filed 24 false police report. The guy got arrested. 25 Actually, I think -- I'm not sure if he went to cause of action for malicious prosecution." That was actually the issue before them because it had already been determined that the litigation privilege applied to the abuse of process in both the Third and the Fourth District Courts of Appeal. That's admitted by the counterclaim in their motion in opposition. I wanted to speak about this idea that the worst -- the actions were of Mr. Epstein and/or his attorneys that somehow or another there's a www.phippsreporting.cam 888 811-3408 001260 EFTA00613557 51 trial, but he was able to establish that he was 2 six miles away at the time of the alleged 3 stalking. And.the ladies just lied to get him in 4 trouble. 5 The Olson case was addressed in the Wolfe 6 case, and it said, Wait a minute, that is -- a 7 cause of action for malicious prosecution will 8 stand there because that was an action that was 9 taken outside of the judicial process. 10 THE COURT: And that -- and that's, you 11 know, where, you know, I'll ask Mr. King to 12 13 14 15 16 17 18 19 20 21 22 23 24 25 briefly address this as well. But, you know, the dilemma the court has here is the language that is reaffirmed in Wolfe and extracted from the Echevarria matter from the Florida Supreme Court. And they quoted and say that Echevarria reaffirmed the proposition -- and I'm using my own words by saying "the proposition" -- that, quote, absolute immunity must be afforded to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding. And they clarify that although not all statements made outside of the formal judicial process are protected by the litigation privilege, an absolute immunity applies to conduct occurring during the www.phippsreporting.com 888 811-3408 001261 EFTA00613558 52 1 course of the proceedings. 2 So that seems to tell me that if Epstein is 3 filing a complaint, if Epstein is seeking 4 discovery, if Epstein is making obnoxious 5 allegations against Edwards -- and I'm, again, not 6 taking a position one side or the other, that's 7 why I'm using the word "if" to preface all of my 8 commentary, as long as it has some relation to the 9 proceeding -- it is afforded absolute immunity. 10 If you're sitting in my shoes, Mr. Brewer, 11 or better yet sitting in Mr. Edwards' shoes, what 12 would be his best argument to defeat your motion 13 on malicious prosecution? 14 MR. BREWER: I don't know that they have 15 one, Your Honor, in light of Wolfe. Not at this 16 level. 17 THE COURT: Is there anything that you can 18 fathom as an officer of the Court that they are 19 claiming Epstein did in either the abuse of 20 process or the malicious prosecution claim -- and 21 as I said, I'm more concerned with the malicious 22 prosecution claim -- that Epstein did outside of 23 the judicial proceedings? Is there anything 24 alleged here that he did outside of the judicial 25 proceeding, such as -- I saw in the damages www.phippsreporting.com 888 811-3408 001262 EFTA00613559 1 2 53 portion of the argument made by the Edwards side, and I think it may have had some relation to 3 Judge Crow's questions about damages relating to 4 Mr. Edwards -- but I saw that there were 5 some --that -- that Mr. Edwards felt there was 6 some threat to his or -- to him and his family. 7 Has there been any such threats made to your 8 knowledge by Mr. Epstein that would have gone to 9 him or his family? 10 MR. BREWER: Your Honor, I'm late to the 11 game. I was not a participant or counsel here 12 until, oh, probably three or four months ago. I 13 have done my best to familiarize myself in what 14 has gone on prior, but it's voluminous. And so 15 can't swear to you that I've read everything or 16 seen everything. I, however, have no knowledge of 17 Mr. Epstein making any threats to -- towards 18 Mr. Edwards. 19 THE COURT: I'm just using that as an 20 example. 21 MR. BREWER: Well, I don't have any 22 knowledge of him making threats to Mr. Edwards or 23 to 11_s family. 24 THE COURT: Anything outside of the 25 judicial proceeding as potentially or allegedly www.phippereporting.com 888 811-3408 001263 EFTA00613560 54 1 obnoxious? And as Mr. King brought out earlier 2 the allegations being horrifying, egregious, no 3 matter how you might identify those allegations 4 that were quickly withdrawn, anything that you're 5 aware of that went on outside of the judicial 6 process that is being alleged here? 7 MR. BREWER: Not that is being alleged 8 here, Your Honor, no. TRISCOURT: Mr. King, anything that's being 10 alleged here that goes outside of the broad 11 spectrum that I have read into the record that has 12 its genesis in Echevarria and was quoted by the 1 2 Wolfe Third District Court of Appeal opinion? MR. KING: There's nothing alleged. 15 Mr. Edwards' testimony, though, was that he was 16 being stalked by an investigator which gave him 17 the additional concern. But that's not 38 specifically alleged as a matter that, you know, 19 that forms the basis for the malicious prosecution 20 or the abuse of process claim. It's not 21 specifically set forth in the pleadings. 22 THE COURT: How do I get around this 23 Echevarria language? Again, I recognize what's 24 gone on here, but personal empathy doesn't have 25 any part in a courtroom. It just doesn't and www.phippsreporting.com 888 811-3408 001264 EFTA00613561 55 1 shouldn't. I ruled in your favor and I've ruled 2 against you. I've ruled in Mr. Goldberger's 3 favor; I've ruled against him. I've ruled in 4 favor of Mr. Edwards' claims and contentions; I've 5 ruled against him. 6 But I'm just having difficulty coming away 7 from the reaffirmation of the Florida Supreme 8 Court's blanket statement here that absent extra 9 judicial activity, everything that is occurring 10 during the course of a judicial proceeding, so 11 long as the act has some relation to the 12 proceeding, is subject to absolute immunity. 13 MR. KING: If I may? 14 THE COURT: Absolutely. 15 HR. =HO: Levin -- neither Levin nor 16 Echevarria dealt with the malicious prosecution 17 claim, which is really what I'm going to focus on 18 now. 19 THE COURT: But now I'm dealing with -- 20 and, again, forgive me for interrupting, but just 21 to make clear the precedential value that I have 22 to ascribe to Wolfe, and as you indicated, the 23 Fourth in its case seems to, at least from the 24 abuse of process part of the matter, align itself 25 with that same side. The Third District Court of www.phippgreporting.com 888 811-3408 001265 EFTA00613562 56 1 Appeal is an appellate court that I must follow 2 unless there's a specific ruling to the contrary 3 by the Fourth District Court of Appeal. And the 4 Third is crystal clear in its analysis. 5 Whether you or I agree with it is not for 6 me to say. But its analysis is abundantly clear 7 and it, again, reaffirms the Supreme Court 8 language that talks about where we're within the 9 judicial proceeding, as repugnant as it may be, as 10 long as it bears relation, some relation, just let 11 this be the rather broad language utilized by the 12 Supreme Court of Florida, absent extrajudicial 13 process -- extrajudicial actions, better stated, 14 I'm left with this legal analysis while cogent, 15 it's clear, while short it's clear. 16 MR. KING: But that is why all of the 17 positions that I have articulated that would 18 suggest that Levin nor Echevarria would apply to a 19 malicious prosecution claim because it is 20 distinctly different from the nature of -- just as 21 22 23 24 25 Judge Sasser says, "It's not something that going on during the course of proceedings. the proceeding itself." Now that's what Wolfe -- Wolfe takes the position otherwise. It says, Well, that -- that is It's www.phippsreporting.com 888 811-3408 001266 EFTA00613563 1 clearly falls within the privilege. 2 THE COURT: And Wolfe is the binding 3 precedent. With all due respect to my suite mate, 4 she's not. And, you know, as a fellow circuit 5 court judge, again, her opinion is meticulous and 6 well-written, but it flies in the face of 7 precedential value here, and that is the Wolfe 8 case that ties the bow, so to speak, around the 9 malicious prosecution case. 10 Where there may have been before something 11 to hang one's hat on, the probable cause issue, as 12 I described before, clearly a factual issue. 13 Whether the case ended in a bona fide termination 14 in favor of Mr. Edwards, subject certainly to 15 factual review. But that -- but the elements are 16 taken away from us, in my view, from a trial 17 court's decision-making and we're left with the 18 global analysis that was rendered by the Third 19 District Court Of Appeal. 20 And the bow is tied to include malicious 21 prosecution cases as long as those actions, as 22 alleged and conceded by you, and I appreciate 23 incredibly the concession, but as conceded that 24 all of the allegations contained in the operative 25 Fourth Amended Complaint relate to the judicial CSC www.phippsreporting.com 888 811-3408 001267 EFTA00613564 58 1 proceeding in some form. 2 I . KING: If I may, Judge, just a final 3 conclusionary remark? 4 THE COURT: Absolutely. Please. 5 MR. KING: I would harken back to the 6 impact of Olson, which even though it does not 7 deal with a post-civil complaint issue such as you 8 have here, the language of the opinion is the 9 litigation privilege does not apply to malicious 10 prosecution. There is -- we submit that that sets :1 forth at least a conflict on that issue that :2 allows you to then peruse all of the issues that :3 discussed. 14 TEE COURT: Let me look at that Olson case 15 specifically, please. 16 MR. BRXNER: I have a copy here if you would like, Your Honor. 18 THE COURT: No. You have both done an 19 excellent job in tabbing all of these materials, 20 and I want to again compliment both sides on their 21 presentations and their performance as well as 22 well presentations. It's extremely gratifying, 23 especially when I've had I think 14 hearings in 24 25 addition to the 8:45s today to see the kind of advocacy that I'm seeing here at this hearing. www.phippsreporting.com 888 811-3408 001268 EFTA00613565 59 1 But I will take a quick look at that Tab 16 that I 2 have. Thank you. 3 The Olson case that is cited in, and I've 4 read somewhat quickly, but I believe I've picked 5 up the genesis. And the import of the opinion 6 deals with prelitigation statements made by an 7 individual who is accusing Olson of stalking. And 8 the court distinguished that claim privilege from 9 a defamation case that was addressed in a case 10 called Fridovich vs. Fridovich, 598 So2d. 65, 11 Florida Supreme Court case 1992, in which the 12 Supreme Court was presented with a certified 13 question of whether a person who makes statements 14 to law enforcement about another individual prior 15 to the instigation of judicial proceedings. 16 And that is important here I think in our 17 review of the case since those statements that 18 were made allegedly by the accuser in Olson were 19 made prior to the instigation of judicial 20 proceedings and whether those statements were 21 protected by an absolute privilege for liability 22 against defamation, and the court held that 23 defamatory statements voluntarily made by private 24 individuals to the police or to the State's 25 Attorney's Office before institution of criminal www.phippareporting.comi 888 811-3408 001269 EFTA00613566 60 1 charges are presumptively qualifiedly privileged. 2 And such voluntary statements are treated 3 differently than statements made under the State 4 Attorney's investigatory subpoena, which are 5 encompassed within a judicial proceeding and thus 6 are absolutely privileged. 7 So there is that distinguishing 8 characteristic here as well. And, again, the 9 issue was met head on by Wolfe. It was not 10 discussed in the Olson case, respectfully, that I 11 can gather here. So based on the Third District 12 Court's decisions in Wolfe quoting in large part 13 from the Florida Supreme Court's decision in 14 Echevarria, whereas here all of the allegations 15 made in both the abuse of process claim and the 16 malicious prosecution claim, as conceded by the 17 Edwards side, are acts occurring during the course 18 of a judicial proceeding and bear some relation to 19 the proceeding, the Court has no other alternative 20 than to grant the motion on both counts. 21 MR. BREWfl: Your Honor, I have prepared an 22 order which I think fairly closely -- it does not 23 have in it about the conceding the points, but it 24 does grant the motion based upon the cases that 25 you have just indicated. www.phippsreporting.com 888 811-3408 001270 EFTA00613567 61 1 THE COURT: I would ask you to kindly go 2 ahead and order the transcript and track the 3 language that I have tried to utilize here 4 distinguishing Olson, as well in following the 5 Supreme Court's directive in Echevarria and the 6 Third District Court of Appeal dictates in the 7 Wolfe case. 8 MR. BREWER: Yes, Your Honor. 9 THE COURT: That's the cornerstone of the 10 Court's decision. 11 Again, thank you all very, very much for 12 your input and your professionalism and your 13 arguments. No one could have done a better job on 14 both sides. So thank you very much. 15 MR. BREWER: Thank you, Your Honor. 16 THE COURT: Thank you, Madam Court 17 Reporter. 18 THE COURT REPORTER: Thank you, Your Honor. 19 (Thereupon, the proceedings were concluded 20 at 4:23 p.m.) 21 22 23 24 25 WO. www.phippsreporting.com 888 811-3408 001271 EFTA00613568 62 1 COURT CERTIFICATE 2 3 4 STATE OF FLORIDA 5 COUNTY OF PALM BEACH ) 6 7 8 I, Robyn Maxwell, Registered Professional 9 Court Reporter, State of Florida at Large, certify that I 10 was authorized to and did stenographically report the 11 foregoing proceedings and that the transcript is a true 12 and complete record of my stenographic notes. 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated this 29th day of January, 2014. .... „ea, lem MAX eRinPR, CLR' 4Y REALTIME SYSTEMS ADMINISTRATO www.phippetreporting.com 868 811-3408 001272 EFTA00613569 63 accused (1) 50:23 43:17 44:23 49:6 51:12 43:19 61:2 airplane (1) 13:4 answered (1) A abandoned (4) 33:13 35:2 accuser (I) addressed (3) 34:11 32:19 36:17,23 59:18 30:18 51:5 59:9 align (1) 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60:15,16 56:14 complete (1) 51:6 55:23 49:6 claimed (2) cold (1) 62:12 57:8,9,13 challenge (1) 13:19 15:4 4:17 completely (1) 58:14 59:3,9,9 48:3 claiming (2) COLEMAN (1) 35:9 59:11,17 60:10 changed (1) 23:24 52:19 2:15 compliment (1) 61:7 11:2 claims (31) come (1) 58:20 cases (28) characteristic ... 3:24 4:1 5:8,17 28:4 conceded (3) 4:8 7:21,24 8:12 60:8 6:3,4 7:19 comes (3) 57:22,23 60:16 8:24 11:10,16 charged (1) 15:23 24:4 40:12 41:6 conceding (1) 12:16 13:7 33:8 25:13 27:25 47:11 60:23 www:phippsreporting.com 888 811-3408 001275 EFTA00613572 66 concept (1) 44:9 concern (3) 16:4 45:25 54:17 concerned (2) 39:3 52:21 concerns (4) 55:4 context (2) 32:11 45:12 continue (1) 44:19 continued (2) 44:4 45:8 continues (1) counterclaim ... 6:14 9:11,12,13 9:19 13:15 50:7 counts (4) 9:7,9 23:24 60:20 County (5) 34:18 35:17,25 36:10 37:22 38:11,12,14,17 40:11 42:2,23 43:9,19 45:22 46:1,10,13,17 46:21,25 47:10 48:23 49:1,4,8 4:2 20:20,24 Crow's (1) 53:3 Cruz (1) 29:7 crystal (1) 56:4 current (2) 36:743:17 35:11 1:1,1619:8,8 51:10,13,15 9:24 10:4 44:23 45:13 continuing (2) 62:5 52:17,18 53:19 currently (3) concession (1) 15:24 40:24 course (18) 53:24 54:9,13 6:15,18 25:7 57:23 contradistinct... 3:21 4:23 8:23 54:22 55:14,19 cut (2) concise (1) 25:16 28:7,10 11:17 21:21,25 55:25 56:1,3,7 31:19 32:3 26:25 contrary (1) 27:13 29:16,22 56:12 57:2,5 D conclude (1) 56:2 35:3 47:22,25 57:19 58:4,14 Dade (1) 49:23 control (2) 48:9 51:20 58:18 59:8,11 concluded (2) 22:4 37:6 52:1 55:10 59:12,22 60:19 19:8 8:1 61.19 controvert (1) 56:22 60:17 61:1,6,9,16,16 damages (3) conclusion (2) 37:1 court (163) 61:18 62:1,9 48:17 52:25 4:9 28:5 convenient (1) 1:1 3:3,6,11,17 courtesy (1) 53:3 conclusionary-. 37:11 4:13,18,23 5:2 48:25 dare (1) 58:3 Cope (3) 5:10,13,20,23 Courthouse (1) 28:12 concurring (6) 27:7,14,19 6:1,6,20 7:1,12 1:16 DATE (1) 25:19 27:7,9,10 Cope's (1) 7:22,23 8:3,6 courtroom (2) 1:15 28:3 42:19 28:3 8:13,15,19,22 1:17 54:25 Dated (1) conduct (5) copies (2) 9:25,25 10:1,3 courts (4) 62:14 6:4 38:19,19,21 21:14,15 10:9,15,18 11:20 28:18 dates (1) 51:25 copy (1) 11:6 12:2,6,18 39:12 50:6 11:14 confidential (1) 58:16 13:1,5 14:6 court's (13) daY (5) 36:3 cornerstone (1) 15:15,15,16,19 22:4 23:3 24:13 10:13 17:25 conflict (2) 61:9 16:2,6,11,19 27:20 28:10 19:11,12 62:14 25:7 58:11 correct (3) 16:25 17:8,17 49:18,24 55:8 days (1) confused (1) 5:18 8:18,20 17:25 18:2 57:17 60:12,13 38:7 23:18 correction (1) 19:9,23 20:10 61:5,10 DCA (3) confusing (1) 10:13 20:13,15,18 cover (1) 27:18,22 29:9 10:20 correctly (1) 21:3,6,13,17 24:5 DCA's (2) conservative (1) 11:12 22:3,6,14,19 covered (2) 25:11 27:16 36:18 corrects (1) 22:22 23:1,2,7 23:20,24 deal (4) conspiracy (1) 37:19 23:17 24:15,20 cries (1) 3:15 11:13 21:9 33:9 Corrigan (3) 25:4,5 26:16 43:21 58:7 contained (1) 28:2129:2 45:4 26:17,21,24 crimes (2) dealing (3) 57:24 counsel (8) 27:3,9,12,23 33:9,11 25:4 30:3 55:19 contains (1) 3:8 6:22 21:15 28:6,14,16,24 criminal (1) deals (3) 10:24 29:24,25 37:4 29:17 30:2,3 59:25 21:6,10 59:6 contempt (2) 47:14 53:1 1 30:15,18,20,24 cripple (1) dealt (2) 16:20 22:5 count (1) 31:20,24 32:9 22:7 25:25 55:16 contentions (1) 45:11 32:12 33:1,21 Crow (3) decided (1) www.phippsreporting.com 888 811-3408 001276 EFTA00613573 67 28:24 decision (11) 26:19,22 27:7 desiring (1) 33:21 despite (2) discussed (4) 28:25 32:5 58:13 60:10 Dixie (I) 1:16 doctrine (2) 18:12,17 19:12 19:13 22:16,24 32:18 33:2,8 27:16,22 28:21 32:24 35:10 discusses (1) 28:11 39:18 34:5,8,14 28:23 31:24 detail (1) 31:25 documents (2) 35:21 37:13 32:6 60:13 23:6 discussing (1) 38:6 40:15 38:4 40:22 61:10 determination... 36:6 doing (3) 41:15,25 44:3 decisions (2) 17:18,22 18:2 Discussion (2) 8:16 34:23,23 44:19 47:24 21:24 60:12 23:8 24:11 22:21 31:22 Donald (1) 48:15 52:5,11 decision-maid... determination... dismiss (2) 1:18 53:1,4,5,18,22 57:17 17:23 37:17 38:1 double-cheek ... 54:15 55:4 defamation (4) determine (2) dismissal (1) 47:13 57:14 60:17 11:15,16 59:9 11:22 21:13 5:17 dropped (2) effect (1) 59:22 determined (3) dismissed (3) 41:11,12 50:13 defamatory (1) 12:14 13:9 50:3 5:14 6:1,5 due (1) effectuated (1) 59:23 determining (1) disposed (1) 57:3 37:3 defeat (1) 12:10 23:22 efforts (1) E 52:12 developed (1) disputes (1) 48:8 earlier (3) defendant (3) 40:19 23:12 egregious (3) 18:5,6 30:6 dictate (1) disqualify (1) 34:13 37:20 45:7,14 54:2 defendants (4) 46:22 29:24 54:1 either (4) 1:8 5:11,13 dictates (1) dissatisfaction... earl,' (1) 23:14 28:17 49:20 61:6 42:10 32:4 45:6 52:19 defended (1) difference (1) distance (1) easier (1) elements (7) 5:6 45:15 15:25 10:6 24:6,22 42:21 defenses (1) different (8) distinction (2) Echevarria (17) 47:17 48:4,11 9:20 7:14,20,21 41:16,16 11:11 12:17 57:15 degree (1) 11:20 30:5 distinctly (1) 13:6 14:12 embrace (1) 40:17 35:9 42:16 56:20 21:10 23:21,25 42:20 Delmonico (1) 56:20 distinguish (3) 25:12 28:24 empathy (1) 21:11 differently (1) 15:20 40:7,8 51:15,16 54:12 54:24 demonstrated ... 60:3 distinguishabl... 54:23 55:16 emphasis (1) 17:13 difficult (3) 31:3 56:18 60:14 32:23 denied (1) 44:24,25 47:11 distinguished ... 61:5 encompassed ... 11:4 difficulty (2) 59:8 educated (1) 60:5 DENNEY (1) 32:20 55:6 distinguishing... 40:17 ended (2) 2:18 dilemma (1) 60:7 61:4 Education (1) 43:16 57:13 dcpos (1) 51:13 district (15) 3:18 enforcement (1) 48:20 directive (1) 9:25 10:1 13:1 educational (1) 59:14 deposition (4) 61:5 15:14,15 28:13 40:20 entire (3) 8:4 22:10 38:6 disclosure (1) 28:14 29:8 Edwards (55) 33:5 48:19,20 39:9 39:6 50:5 54:13 1:7 2:17 4:6 5:6 entities (2) depositions (3) discovery (7) 55:25 56:3 5:8,18 6:2,15 4:6,25 14:14 18:23 8:24 13:21 57:19 60:11 6:22 7:6 8:3,15 entitled (1) 48:18 14:14 18:21 61:6 9:6,11,18,19 22:17 described (1) 22:1 34:14 division (2) 10:6,7 13:22 Epstein (31) 57:12 52:4 3:25 4:10 14:2 15:6,21 1:4 3:24 4:5,14 www.phippsreporting.com 888 811-3408 001277 EFTA00613574 6 6:11,13 7:4,19 8:19 9:3 13:24 15:7 17:13 18:10,19 19:19 evidence (7) 19:20 34:4 35:24 37:9 38:3,8 43:24 extrajudicial (2) 56:12,13 extremely (I) 58:22 family (3) 53:6,9,23 far (6) 11:22 12:3 26:4 19:16 finding (2) 17:24 49:24 fuse (3) 32:16,22,25 evil (1) 38:21 39:2,19 I 34:24 37:22 F 34:2,2,22 35:8 44:18 fathom (1) 49:8 face (2) 37:1,6,10 evolution (1) 52:18 firm (7) 40:15,25 44:7 33:16 34:25 57:6 favor (5) 18:13,15,19 44:20 50:9 exactly (1) faced (2) 49:19 55:1,3,4 19:5 32:14 52:2,3,4,19,22 13:13 13:1 38:2 57:14 36:16 41:11 53:8,17 example (4) facing (2) federal (5) firms (1) Epstein's (8) 33:25 42:17 34:17 39:7 7:22 8:5,13 34:6 41:10 5:23 6:4 9:18 43:11 53:20 fact (11) 44:6 first (2) 18:24 22:18 excellent (I) 10:1 13:20 feel (1) 6:9 18:12 33:6 42:10 58:19 17:20,21 24:1 20:2 five (1) 44:16 excuse (4) 24:10,19 35:10 fellow (1) 19:23 equally (1) 15:6 35:22 40:9 50:15,22 57:4 FL (5) 45:20 41:23,23 factor (2) felt (1) 1:17 2:5,9,14,19 escalating (1) exist (3) 32:7,8 53:5 Fla (1) 19:1 42:22 47:8 facts (21) fence (1) 28:23 especially (2) 50:21 23:5,10 26:3 39:2 flies (1) 32:23 58:23 exists 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14:1,8,9 follow (2) eve (4) 33:11 41:8 50:24 22:2,7 30:5,12 28:15 56:1 5:18 37:17,24 extort (1) familiar (2) 48:16 52:3 following (4) 41:12 14:2 11:15 19:9 final (3) 1:23 3:2 29:18 event (2) extra (1) familial* (1) 11:1,5 58:2 61:4 19:14 37:23 55:8 4:1 finance (1) footnote (1) everybody (I) extracted (1) familiarize (1) 40:18 28:4 3:3 51:14 53:13 find (I) foregoing (1) d—, www.phippsreporting.com 888 811-3408 001278 EFTA00613575 69 62:11 forever (2) 16:12,14 forget (1) further (3) 14:19 36:7 38:10 future (1) 46:11 55:17 56:22 GOLDBERG... 2:8,10 hand (1) 36:12 handle (1) 24:24 holds (2) 25:12,16 Honor (27) 3:5 4:20,24 5:25 14:18 39:22 Goldberger's ... handled (3) 6:10,16 7:10 forgive (1) F.Supp.2d (1) 55:2 3:24 4:816:24 7:17 15:13 55:20 28:22 good (3) hang (1) 17:5 21:14,19 forgot (1) 3:3,5 43:4 57:11 22:23,24 35:22 G 49:5 government (2) happened (3) 46:12,1449:3 game (1) form (1) 34:6,6 8:7 10:19 33:22 49:12 52:15 58:1 53:11 grant (4) happens (3) 53:10 54:8 formal (1) gather (1) 20:5 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held (1) identify (2) 1:24 62:18 18:9 19:17 bruised (1) 59:22 23:6 54:3 fraud (3) 26:4 31:5 17:1 Henry (1) ignores (2) 33:9,10,10 39:19 41:2,17 guy (2) 27:17 27:6,15 Fridovich (2) 43:2,19 45:10 50:23,24 highlighted (2) lounallaSelY (1) 59:10,10 61:1 guys (I) 21:14,15 36:17 front (2) goes (3) 19:25 highlighting (1) immunity (11) 12:18 18:15 21:8 35:3 54:10 48:21 31:9 32:3,5,5 H full (3) going (15) Highway (1) 36:13 38:23 Haddad (7) 27:16 39:6,19 3:11 6:20 8:5 1:16 39:12 51:19,25 fundamental_ 14:11 19:4 2:12,15 4:11,12 history (0 52:9 55:12 30:5 23:4 28:15 4:15 5:25 20:1 6:21 7:18 10:21 impact (4) Funeral (1) 33:5 3412 Softie (1) 10:23 18:16 35:14 43:18,20 27:16 36:745:9,10 1:18 33:5 58:6 _,.... www.phippsreporting.com 888 811-3408 001279 EFTA00613576 70 impeachment ... 7:10 implicitly (3) 27:22,24 30:21 imploded (1) 27:5 influence (1) 33:1 information (2) 8:1 13:24 3:24 5:11,13 7:21 17:20 29:21 31:5 33:12 38:9 39:20 40:9 Jeffrey (2) 1:4 6:11 jgoldberger®... 2:11 job (2) juncture (1) 5:24 jurisdiction (1) 28:17 jury (3) 19:5 inherent (1) 44:2 48:5 58:I9 61:13 17:22,22,23 implosion (1) 22:4 involvement (4) Johnson (6) K 37:12 initial (4) 31:7 32:13 36:8 25:10,21,25 Kenny (2) import (2) 5:17 24:17 33:7 44:16 26:22 29:14 39:19 59:5 49:10 involves (1) 50:19 32:14 36:16 important (2) initiation (1) 30:5 JR (2) key (1) 44:8 59:16 13:17 involving (3) 2:3,6 25:3 importantly (1) input (1) 4:3 12:16 33:17 JSX®searcyl... kind (3) 28:9 61:12 iota (1) 2:20 13:7 44:11 improper (2) inside (1) 38:3 judge (33) 58:24 22:1,2 34:22 irrelevant (1) 1:18 4:2,15 8:10 kindly (2) inappropriate... insofar (1) 14:21 10:13 17:22 3:12 61:1 16:22 17:11 issuance (1) 20:20,24 25:3 King (55) include (1) instigation (2) 11:3 25:18 26:9,11 2:21 8:10,14,18 57:20 59:15,19 issue (30) 26:17,20 27:7 8:20 10:10,12 including (2) institution (I) 10:7 12:3 13:2 27:14,19 28:3 10:16,19 22:22 12:7 45:7 59:25 13:14 18:1 28:21 29:2,14 22:23,23 23:3 incredibly (1) interesting (2) 20:6,13,14 42:18,19 43:11 23:17 24:13,16 57:23 27:4 36:12 23:4,7,14,20 44:9 45:4 46:6 25:1,6 26:19 independent (1) interference (3) 24:11,12,17 47:1,5 53:3 26:22,25 27:4 4:4 12:1,9 30:1 25:3,8 28:15 56:21 57:5 27:10,13 31:21 indicate (3) interrogatorie.- 31:25 35:15 58:2 31:23 32:18 32:13,15 50:20 13:20 14:15 36:13 40:1,5 judges (1) 33:4 34:19 indicated (7) interrupt (1) 44:23 50:2 26:13 36:5 37:8,23 8:4 29:12 30:21 10:3 57:11,12 58:7 judgment (11) 38:13,16 39:15 30:21 32:11 interrupting (1) 58:11 60:9 5:19 6:13 14:25 40:11 41:2 55:22 60:25 55:20 issued (1) 15:1 23:15 42:14,24 43:20 indicates (3) interruption (1) 10:24 24:25 35:23 45:23 46:4,24 8:15 10:24 8:21 issues (13) 37:18,24 41:13 47:4 48:24 37:20 interview (3) 12:22 19:20 49:19 49:9 51:11 indication (2) 6:23 7:4,7 20:4 21:12,13 judicial (31) 54:1,9,14 35:20 36:24 intimidate (1) 26:4 35:4,15 1:1 11:17 12:12 55:13,15 56:16 indications (1) 14:1 43:3,4,5 46:23 12:21 13:11,18 58:2,5 34:12 investigations ... 58:12 13:18 14:8,13 ICnaciswalter (... individual (5) 8:2 15:18 16:9 32:14 36:16 J 40:17 41:23 investigator (1) 38:19,20,21,23 knew (3) J (2) 47:12 59:7,14 54:16 39:10 51:9,20 5:1018:10 individually (4) investigatory (... 1:7 2:17 51:23 52:23,24 37:14 1:7,7 5:3,5 60:4 Jack (3) 53:25 54:5 know (31) individuals (1) investors (3) 2:10,20 22:24 55:9,10 56:9 3:23 4:7,8 6:24 59:24 19:15,22 27:8 January (2) 57:25 59:15,19 7:14,15 11:7 inexplicable (1) involved (13) 1:15 62:14 60:5,18 16:13,21 19:7 www.phippsreporting.com 888 811-3408 001280 EFTA00613577 71 19:24,25 27:13 34:1,2,18,21 37:16 40:12,16 30:25 44:13 49:16,21 59:14 lawsuit (5) liability (3) 32:4 39:7 59:21 liberal (1) 45:19 49:17,22 49:25 50:4,16 51:24 58:9 27:24 28:19 29:4,10,19 30:4,7,11,13 40:18,23 44:6 9:5 30:4 39:6 36:15 little (1) 30:16,23 31:1 46:15 47:8 44:17 48:6 Libow (2) 49:13 35:4 39:1 42:7 51:11,11,12 lawyer (1) 26:23 29:14 LLC (1) 42:2143:12,15 52:14 54:18 42:18 lie (1) 28:22 43:22 44:8,10 57:4 lawyers (19) 36:24 LM (2) 45:22,24 46:4 knowledge (5) 31:7,8 32:1 lied (1) 6:3 9:6 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56:8,11 58:8 legitimate (1) 16:16 22:8 18:1 20:4 Muhl° (1) 61:3 45:13 40:13 21:23 38:18,20 large (2) length (1) litigation (54) 11:25 39:11 45:14 60:12 62:9 15:22 9:22,23 11:13 machinations .» 51:15 54:3,18 largest (1) let's (2) 11:18,23 12:23 33:6 55:24 18:16 11:8 42:22 13:2 14:4,17 Madam (1) matters (1) LatAin (1) level (1) 14:22 15:2,9 61:16 8:19 39:25 52:16 16:9 17:1 maintain (1) Maxwell (3) latch (1) Levin (23) 18:20 19:21 40:10 1:24 62:8,18 40:5 11:10,25,25 21:6,9,10,19 malting (3) mean (2) late (2) 12:6,19 13:6 21:22,25 22:5 52:4 53:17,22 35:7 42:8 19:3 53:10 14:12 16:15 22:9,17 25:2,8 malicious (56) Meaning (1) latest (1) 20:22,22 23:21 25:14 26:7 5:9 9:8,15,17 36:14 8:3 23:25 25:11 27:25 28:19 12:2413:15 memo (1) Lauderdale (1) 27:20 28:24 29:3,5,11 30:2 15:25 16:18 39:15 2:14 29:21,23 39:5 30:8,9,11,22 17:11 24:4,6 memorandum... law (8) 47:6,10 55:15 31:3,9 40:1,6 24:22 25:9,12 27:21 18:1 20:5 21:13 55:15 56:18 42:14 43:15,23 25:2426:2,8 mentioned (1) www.phippsreporting.00m 888 811-3408 001281 EFTA00613578 72 50:19 merely (2) 33:17,18 met (4) 3:13 move (1) 20:7 multiple (1) noticed (2) 22:10,11 November (2) 9:4 19:3 25:10,21,24 26:6 29:17 50:19,22 51:5 58:6,14 59:3,7 51:9,23 52:22 52:24 53:24 54:5,10 overturn (1) 4:2 17:2 20:2 48:1 November/De— 59:18 60:10 30:25 60:9 muster (1) 9:4 18:11 61:4 P meticulous (1) 24:24 number (6) once (2) PA (2) 57:5 myriad (1) 5:11 7:18,20,21 21:20 26:5 Middle (2) 47:10 9:2,20 one's (1) 2:8,12 20:22 29:8 M.D (1) numerous (1) 57:11 package (1) Middlebrook .» 28:23 18:20 one-half (1) 6:21 20:22 3:12 Page (1) N 0 miles (1) operative (1) 10:14 N (1) objection (1) 51:2 57:24 Palm (8) mind (3) 1:16 46:13 opinion (21) 1:1,16,17 2:5,9 16:12 34:2,3 name (3) obligated (1) 25:11,19 26:9 2:18,19 62:5 minute (3) 6:23 7:13 38:4 22:8 26:11 27:9,11 Panel (1) 22:20 45:11 names (1) obligations (1) 27:18 28:3 27:19 51:6 18:25 31:10 29:13,1442:19 Panel's (2) minutes (2) National (2) obnoxious (2) 43:11 44:25 27:16 28:4 3:19 46:10 39:17,24 52:4 54:1 45:1,4 47:1,3 Papers (3) misconduct (1) nature (1) occasions (1) 54:13 57:5 5:21 34:4,13 21:25 56:20 7:14 58:8 59:5 Part (5) misstating (1) near (1) occur (1) opinions (1) 35:4 46:16 5:11 4:9 21:21 27:14 54:25 55:24 moment (2) necessarily (1) occurred (1) opportunity (5) 60:12 28:25 46:20 34:1 11:16 3:6 6:25 23:6 participant (1) mome•ts (4) necessary (1) occurring (4) 32:2,3 53:11 3:14 25:18 27:2 5:12 51:19,25 55:9 opposed (4) participants (I) 49:3 need (1) 60:17 24:23 29:16 14:16 Monday (1) 31:5 Office (1) 32:22 47:2 particular (2) 1:15 neither (3) 59:25 opposing (1) 35:15 41:15 months (1) 7:7 29:4 55:15 officer (1) 21:15 particularly (2) 53:12 never (3) 52:18 opposition (I) 16:15 38:24 motion (15) 5:5 38:5,7 oh (1) 50:7 partner (1) 6:12 14:24 15:1 non (1) 53:12 order (5) 18:13 17:10 22:11 20:6 okay (16) 47:2 49:18,24 pending (1) 24:8 29:24 North (1) 4:11 6:6 7:17 60:22 61:2 15:23 35:22 37:18,24 28:21 8:22 10:19 orgies (1) people (1) 48:16 50:7 note (3) 11:6 20:10 34:11 18:23 52:12 60:20,24 20:8 27:17,19 21:17 22:19,22 original (4) performance (1) motions (2) noted (1) 24:15 26:24 9:18 15:8,11 58:21 5:7 22:2 29:17 27:12 37:22 35:1 period (3) motive (3) notes (2) 45:23 48:23 outlined (3) 8:8 19:1 33:3 14:20 44:18 47:13 62:12 old (2) 34:3 37:10 perjury (4) 48:10 notice (2) 34:9,10 42:25 16:23,25 33:9 movant (1) 10:12 36:19 Olson (15) outside (7) 33:10 www.phipporeporting.com 888 811-3408 001282 EFTA00613579 73 person (1) 59:13 personal (3) 37:13 40:21 60:23 police (2) 50:24 59:24 pol►cy (1) presentation (1) 9:2 presentations ... 58:21,22 17:12,17,21,24 18:1,3 20:3,6 23:4 24:10 57:11 49:18 50:5 51:9,23 52:20 54:6,20 55:24 56:13 60:15 54:24 21:23 presented (1) probably (3) professional(2) persuasive (1) Pons' (2) 59:12 4:7 38:10 53:12 49:11 62:8 25:22 18:16 19:22 presumptive]) ... problem (2) professionalis... peruse (1) portion (1) 60:1 10:22 26:21 61:12 58:12 53:1 pretext (1) problematic (1) prominent (3) phase (1) position (12) 44:17 45:2 I8:25 20:17 36:2 23:13 25:6,21 prevent (1) procedural (2) 22:13 picked (1) 28:11 32:10 30:8 6:20 7:18 prongs (1) 59:4 35:9 37:8 42:3 primarily (1) proceed (1) 40:4 picking (1) 45:3 46:1 52:6 39:5 41:8 pronouncing (1) 42:4 56:25 prior (4) proceeded (1) 11:12 piece (1) positions (1) 27:6 53:14 7:24 properly (I) 38:8 56:17 59:14,19 proceeding (19) 17:15 place (3) post-civil (1) private (1) 11:17 12:12 proposed (1) 1:16,22 8:25 58:7 59:23 15:18 33:2 6:17 Plaintiff (2) Potash (1) privilege (62) 38:23 39:10 proposition (7) 1:5 2:3 27:8 9:22,23 11:13 51:20,21 52:9 21:11 25:23 plan (1) potentially (2) 11:18,23 12:4 52:25 53:25 26:6 28:14 20:18 19:21 53:25 12:5,23 13:3 55:10,12 56:9 30:20 51:17,18 planes (1) power (1) 13:12 14:4,17 56:23 58:1 propositions (1) 18:24 22:4 14:22 15:3,9 60:5,18,19 26:13 plans (1) powers (1) 16:1017:1 proceedings (... prosecute (1) 35:25 22:5 21:7,9,11,12 1:13,23 3:2 15:24 pleading (1) precedent (3) 21:19,20,22 12:21 16:20 prosecution (60) 13:18 27:6 28:8 57:3 22:17 25:3,8 29:22 35:10 5:9 9:15,17 pleadings (5) preeedential (3) 25:14 26:7 38:20,22 47:22 12:24 13:16 13:16 14:25 10:9 55:21 57:7 28:1,19 29:3,6 52:1,23 56:22 15:25 16:2,18 49:19 50:12 preceding (2) 29:11 30:2,9 59:15,20 61:19 17:12 24:4,6 54:21 12:12 16:9 30:12,22 31:3 62:11 24:22 25:9,13 please (7) preclude (1) 31:10 40:1,6 process (50) 25:24 26:2,8 20:7 22:22 23:1 30:10 42:15 43:15,23 5:8 9:9,14,16 27:24 28:20 23:2 39:14 precursor (2) 44:12 45:5,12 12:24 13:12,18 29:4,10,20 58:4,15 39:25 45:1 45:16,19 47:9 13:19 14:8,14 30:4,7,8,11,13 plight (1) preface (1) 49:17,22,25 15:12 16:18 30:16,23 31:1 40:24 52:7 50:4,17,17 24:4,23 29:5 35:4 39:1 42:7 podium (1) prejudice (2) 51:24 57:1 31:1633:18,19 42:21 43:12,15 49:7 5:15 6:2 58:9 59:8,21 37:2 38:19,24 43:22 44:8,10 point (10) preliminary (1) privileged (4) 39:3,13,18,23 44:13 45:8,22 17:9 21:18 24:3 23:18 13:10 14:10 40:2,7 41:1 45:24 46:5 24:16 25:17 prelitigation (1) 60:1,6 42:7 44:24 47:25 49:14,23 27:1 32:13 59:6 pro (3) 45:17,2046:2 50:1,21 51:7 41:1,7 49:15 prepared (2) 8:16 40:16 44:5 46:8 47:14,16 52:13,20,22 points (1) 23:10 60:21 probable (11) 47:20 48:3,5,6 54:19 55:16 www.phippsreporting.com 888 811-3408 001283 EFTA00613580 74 56:19 57:9,21 58:10 60:16 protected (5) 23:20 P.A (2) 2:3,18 48:20 53:15 54:11 59:4 reading (1) 32:21 record (9) 22:20,21 31:20 7:16 relative (1) 24:3 11:18 14:16,17 p.m (4) 10:23 31:22 32:15 relief (1) 51:24 59:21 1:15,15 3:2 ready (1) 35:2444:16 20:5 protecting (1) 61:20 17:5 54:11 62:12 rely (1) 33:22 reaffirmation... refer (I) 25:19 0 protections (3) 55:7 19:16 remark (1) qualified (1) 16:15,17 17:6 reaffirmed (2) reference (3) 58:3 protocol (1) 32:5 51:14,16 7:1 34:12,13 remedies (2) 46:22 qualifiedly (1) reaffirms (I) referenced (2) 22:3 47:7 protracted (1) 60:1 56:7 4:25 47:14 remember (5) 16:3 question (6) realize (2) referencing (1) 5:20 19:11,11 provided (2) 8:11 12:13 3:21 33:24 8:12 19:13 29:23 6:21 21:14 32:15 35:7 really (10) referred (1) remotely (1) providing (1) 39:21 59:13 5:6 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57:15 26:9,11 29:14 33:10 short (1) 33:20 59:17 43:11 47:1 see (5) 56:15 sorts (1) reviewing (2) satisfied (3) 14:23 36:22 showed (1) 33:8 36:1,19 47:17 48:4,11 37:4 41:16 34:7 Sounds (1) revoked (1) save (1) 58:24 shows (3) 20:18 29:15 3:14 seeing (1) 31:25 43:21 South (2) rid (1) saw (4) 58:25 44:16 2:4,8 42:22 7:1,13 52:25 seeking (1) side (11) Sold (5) right (13) 53:4 52:3 3:19 10:6,7 25:10 27:8,17 4:18 10:15 11:7 saying (3) seen (2) 13:2215:21,25 29:9 59:10 17:2 27:3 20:21 36:10 50:14 53:16 37:5 52:6 53:1 speak (6) 31:19 38:16 51:18 seize (1) 55:25 60:17 10:10 37:2,7 42:23 43:19 says (6) 32:3 sides (5) 46:23 50:8 46:3,24 47:2,4 20:24 21:1 44:9 seized (3) 15:6 36:11,22 57:8 Roberts (4) 45:5 56:21,25 35:20,21 37:11 58:20 61:14 speaks (2) 6:24 7:2,3,13 scale (1) seminal (1) signed (1) 9:13 35:3 Robyn (3) 50:11 11:24 7:8 specially (1) 1:24 62:8,18 Scants (17) sent (1) significance (1) 6:16 role (1) 2:18,20 4:19,20 3:7 4:22 specific (3) 41:3 4:24 5:4,12,16 separate (3) significant (2) 24:19 33:11 Rothstein (12) 5:22 6:3 7:5 4:4 22:9 30:1 3:25 43:8 56:2 1:7 4:5,25 5:2,5 9:10 22:13,24 separately (1) signifies (1) specifically (5) 5:24 9:5 18:13 37:19 46:11,20 24:24 11:4 30:19 49:16 18:15,19 19:5 scheme (1) Serveies (1) simply (2) 54:18,21 58:15 19:18 19:22 27:17 23:6 42:8 spectrum (1) 12 NI (2) schemes (1) set (5) sir (6) 54:11 1:24 62:18 18:16 6:15,16,18 5:12,18,22 6:9 split (3) RRA (2) Scherer (1) 37:25 54:21 21:1,9 3:13 46:15,19 37:11 44:3 19:6 sets (3) sitting (4) stage (3) RRA's (1) SCI (3) 25:21 37:21 43:8,9 52:10,11 35:10 37:20 19:19 27:16,19 28:4 58:10 situation (6) 44:1 rule (1) scope (1) settled (2) 29:23 33:19 stalked (1) 20:4 21:21 44:20,20 34:16 36:22 54:16 ruled (6) SCOTT (1) settlement (4) 37:11 42:16 stalking (3) 55:1,1,2,3,3,5 1:7 15:23 36:1 six (2) 50:23 51:3 59:7 ruling (4) se (2) 42:11 45:8 19:23 51:2 stand (2) 23:3 24:14 2:13 40:16 settlements (4) size (2) 28:1351:8 28:16 56:2 SEARCY (1) 32:24 35:14,18 35:13 36:1 standard (4) rulings (1) 2:18 37:3 sliding (1) 11:15 12:9 30:24 seat (1) settles (1) 50:11 15:14,17 3.4 35:11 somebody (1) standards (1) S seated (1) Shepherd (2) 22:9 17:3 Sasser (5) 22:25 25:18 42:19 somewhat (3) standing (2) ---- ..—,--, www.phippareporting.com 888 811-3408 001285 EFTA00613582 76 24:21 28:6 standpoint (3) 35:8 42:10 47:16 stands (4) 2:13 strong (1) 35:19 strongly (1) 32:24 support (1) 47:15 supposed (1) 35:23 Supreme (24) 1:15 7:5 11:19 16:22 29:21 39:4 47:21 51:9 57:16 takes (2) theory (1) 25:20 thing (2) 6:19 10:3 things (4) 21:11 25:15 stuff (1) 3:17 9:25 12:2 17:23 56:24 9:2 10:618:25 28:9 35:8 35:20 12:18 15:16 talk (4) 19:4 Star (1) subject (4) 16:6 17:7 6:19 9:16,23 think (21) 28:21 27:25 29:13 27:20,23 28:6 48:7 3:8,14,17,20,22 state (S) 55:12 57:14 28:10,16 30:18 talked (1) 11:14 14:6,7 3:24 7:22 9:24 submission (1) 30:20,23 31:24 39:5 15:19 16:25 16:24 34:6 23:9 51:15 55:7 talking (7) 20:1,5 35:2 60:3 62:4,9 submit (11) 56:7,12 59:11 14:22 16:7,14 36:4 46:1 stated (6) 26:10 31:2 59:12 60:13 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1:17 2:5,9,19 U value (3) 30:10,13,17,25 Westlaw (3) ulterior (1) W 39:22 10:9 55:21 57:7 10:23,25 26:23 W (2) tortious (2) 48:10 various (1) Westlaw's (1) 12:1,8 ultimately (3) 33:6 2:3,6 10:20 torts (2) 29:25 35:5 vel (1) wait (2) we're (7) 12:7,15 37:16 20:6 45:1051:6 9:15 11:9 34:17 tortured (1) uncover (2) vendettas (1) walking (3) 35:15 36:6 33:5 38:3,7 40:22 41:3,4,4 56:8 57:17 touch (1) underlying (2) venue (1) want (10) we've (5) 17:9 19:20 47:25 39:7 4:7,19 6:19 12:14 13:14 track (1) understand (4) versus (1) 10:10 17:9 23:10 47:17 61:2 24:13 319 36:5 39:7 18:9 24:20 48:10 transcript (4) 36:11 vexatious (2) 31:17 38:14 whatsoever (2) 1:12 7:6 61:2 understandab... 30:8 44:12 58:20 3:22 4:3 62:11 36:20 viable (1) wanted (5) Whoa (1) treated (1) understands (1) 5:24 4:21 10:3 43:17 45:10 60:2 10:21 victim (1) 49:9 50:8 William (2) trial (6) undertake (1) 7:4 warning (1) 2:21 22:23 6:17 7:9 49:18 28:15 victims (5) 38:15 withdraw (1) 49.24 51.1 undertook (1) 6:4 7:19,23 8:17 wasn't (1) 38.1 57:16 33:7 9:7 37:19 withdrawn (1) tried (3) undisputed (3) victim's (2) way (1) 54:4 48:13,20 61:3 18:12,14 48:15 8:5,11 42:4 withdrew (1) www.phippsreporting.com 888 811-3408 001287 EFTA00613584 33:13 witness (1) 26:1 Wolfe (49) 10:4,8 11:8,12 12:25,25 13:4 13:5,9 14:3,5,6 14:24 15:20 16:1,1 23:22 23:25 24:2 25:15 26:13 35:25 year (1) 6:18 years (6) 4:1011:20 12:19 34:9,10 41:24 yesterday (1) 19:13 young (2) 6:23 34:10 39:24 9 4 4 (2) 20:22 27:17 4:23 (2) 1:15 61:20 40 (1) 16:8 48409 (1) 26:23 9C (1) 1:17 954.467.1223 (1) 2:14 961 (I) 25:10 2 20 (2) 3:19 16:7 2000 (1) 27:18 2007 (I) 25:11 2009 (5) 9:4,418:11 19:3 5 27:5,5 28:6,9 Yurko (2) 28:23 502009CA040... 29:16,19 31:2 27:2128:2 2012 (2) 1:2 32:8,11 33:21 26:23,23 561.655.4777 (1) Z 36:16 39:25 2014 (2) 2:5 zealously (1) 40:3,5 42:17 1:15 62:14 561.659.8300 (1) 49:15 51:5,14 41:22 205 (1) 2:10 52:15 54:13 1.16 561.686.6300 (1) 1 55:22 56:24,24 2139 (1) 2:19 57:2,7 60:9,12 12 (1) 2:18 57.105 (3) 61:7 34:10 250 (2) 17:3,4 22:6 word (1) 13 (1) 2:4,8 574 (1) 52:7 12:19 27 (I) 29:9 words (2) 1324 (1) 1:15 598 (1) 24:751:17 2822 273 (1) 59:10 work (1) 14 (3) 278 6 44:5 12:19 34:9 278 (1) worked (1) 58:23 29:9 6th (1) 50:11 1400 (2) 296 (1) 6:18 world (1) 2:4,9 62:14 611 (1) 44:18 15 (1) 28:22 worst (1) 34:9 3 65 (1) 50:9 15th (1) 3:00 (2) 59:10 wouldn't (1) 1:1 1:15 3:2 7 36:9 16 (1) 301 (1) 7th (1) wrap (2) 59:1 2:13 46:10 47:5 18 (1) 315 (1) 2:13 Wright (2) 20:23 2:13 702 (1) 27:20 28:2 1917 (1) 33301 (1) 27:17 written (1) 11:14 2:14 8 5:20 1984 (1) 33401 (3) wrongful (1) 27:22 1:17 2:5,9 8:45s (1) 26:2 1991 (1) 33409 (1) 58:24 29:9 2:19 835 (1) Y 1992 (1) 356 (1) 27:8 Yeah (3) 59:11 25:10 839 (1) 10:12 19:9 1999 (1) 27:17 A www.phippsreporting.com 888 811-3408 0(11288 EFTA00613585 RECEIVED, 2/25/2015 3:10 PM, Clerk, Fourth District Court of Appeal BRADLEY J. EDWARDS, Appellant, v. JEFFREY EPSTEIN, Appellee. / FOURTH DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NO.: 4D14-2282 L.T. Case No.: 502009CA040800 ANSWER BRIEF OF APPELLEE JEFFREY EPSTEIN TONJA HADDAD COLEMAN, ESQ. Florida Bar No.: 176737 TONJA HADDAD, PA 315 SE 7th Street Suite 301 Fort Lauderdale, Florida 33301 JOHN BERANEK Fla. Bar No.: 0005419 AUSLEY & MCMULLEN, P.A. 123 South Calhoun Street P.O. Box 391 (zip 32302) Tallahassee. FL 32301 Exhibit B EFTA00613586 TABLE OF CONTENTS TABLE OF CITATIONS ii PRELIMINARY STATEMENT 1 STATEMENT REGARDING ORAL ARGUMENT 2 STANDARD OF REVIEW 2 STATEMENT OF THE CASE AND FACTS 3 SUMMARY OF THE ARGUMENT 5 ARGUMENT 7 THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT, AS THE LITIGATION PRIVILEGE IS A BAR TO APPELLANT'S CLAIM BASED ON MALICIOUS PROSECUTION 7 CONCLUSION 24 CERTIFICATE OF TYPE SIZE AND STYLE 24 CERTIFICATE OF SERVICE 24 EFTA00613587 TABLE OF CITATIONS Cases American Federated Title Corp. v. Greenberg Trauig, P.A., 125 So. 3d 309 (Fla. 3d DCA 2013) 12 American Nat. Title & Escrow of Florida, Inc. v. Guarantee Title & Trust, Co., 748 So. 2d 1054 (Fla. 4th DCA 1999) 13 DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013) 2, 10, 18, 19 Echevarria, McCalla, Raymer, Barren & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) passim Fridovich v. Fridovich, 598 So. 2d 65 (FIa. 1992) 13, 17, 22 Graham-Eckes Palm Beach Academy v. Johnson, 573 So. 2d 1007 (Fla. 4th DCA 1991) 21 Jackson v. Attorney's Title Insurance Fund, 132 So. 3d 1191 (Fla. 3d DCA 2014) 12 Jackson v. BellSouth Telecomms., 372 F.3d 1250 (11th Cir. 2004) 14 LaFrance v. U.S. Bank National Association, 141 So. 3d 754 (Fla. 4th DCA 2014) 2 LatAm Invests., LLC v. Holland & Knight, LLP, 88 So. 3d 240 (FIa. 3d DCA 2011) 3 Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) passim McCullough v. Kubiak, 4D13-4048 (Feb. 18, 2015) 9, 10 Microbilt Corporation v. Chex Systems, Inc., 2013 WL 6628619 (Dec. 16, 2013) 14 Montejo v. Martin Memorial Medical Center, Inc., 935 So. 2d 1266 (Fla. 4th DCA 2006) 13 ii EFTA00613588 Olson v. Johnson, 961 So. 2d 356 (Fla. 2d DCA 2007) 17, 22 Pardo v. State, 596 So. 2d 665 (Fla. 1996) 12 Procacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981) 21 R.H. Ciccone Properties, Ina v. JP Morgan Chase Bank, N.A., 141 So. 3d 590 (Fla. 4th DCA 2014) 15 Rivernider v. Meyer, Case Number 4D14-819 10 SCI Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 702 (Fla. 3d DCA 2002) 22 Steinberg v. Steinberg, 152 So. 3d 572 (Fla. 1st DCA 2014) 6, 9 Valdes v. GAB Robins, 924 So. 2d 862 (Fla. 3d DCA 2006) 7 Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) 2 Wolfe v. Foreman, 128 So. 3d 67 (FIa. 3d DCA 2013) passim Wright v. Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984) 19, 20, 21 iii EFTA00613589 PRELIMINARY STATEMENT This matter arises from the Appellant, Bradley Edwards's appeal of the trial court's final Order granting Appellee's Motion for Summary Judgment. In this brief, the parties will be referred to as they appear before this Court or by the party's proper name. References to the Record will be made by the use of (T. ) which is the transcript of the Summary Judgment Hearing, and (R. ) which is the record proper. The denotation to the record will be followed by the page number where the item to which Appellee is referring may be found. References to the Appellant's Brief will be denoted by (Brief p._) and followed by the page number to which Appellee is citing. Emphasis will be that of Appellee unless otherwise noted. 1 EFTA00613590 STATEMENT REGARDING ORAL ARGUMENT Appellee respectfully requests that this Court permit oral argument in this matter. The issue presented by this appeal; whether the litigation privilege absolutely bars a claim for malicious prosecution when all of the actions upon which the Plaintiff relies in support of his lawsuit occurred during the course of litigation and relate directly to the litigation, is such that oral argument would be of crucial importance on this issue. STANDARD OF REVIEW In reviewing an order granting final summary judgment by the trial court, this Court must apply the de novo standard of review. DelMonico v. Traynor, 116 So. 3d 1205 (Ha. 2013); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); LaFrance v. U.S. Bank National Association, 141 So. 3d 754 (Fla. 4th DCA 2014). The trial court's finding that the litigation privilege applies to malicious prosecution claims, as well as its finding that the litigation privilege was applicable specifically to Edwards's claims for malicious prosecution and abuse of process against Epstein, constituted issues of law. DelMonico, 116 So. 3d at 1211 (stating the determination of whether the litigation privilege extends to the alleged tortious conduct is "a pure question of law."); Wolfe v. Foreman, 128 So. 3d 67, 68 (Fla. 3d DCA 2013) (affirming the determination that the litigation 2 EFTA00613591 privilege applied to plaintiff's malicious prosecution case on a motion for judgment on the pleadings); LatAm Invests., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 243 (Fla. 3d DCA 2011) (affirming the finding that the litigation privilege applied to plaintiff's abuse of process claim on a motion to dismiss), rev. denied, 81 So. 3d 414 (Fla. 2012). STATEMENT OF THE CASE AND FACTS In December 2009, Appellee, Jeffrey Epstein, filed suit against Scott Rothstein ("Rothstein") and Appellant, Bradley J. Edwards, based upon Epstein's justifiable belief at the time of filing his Complaint that these two individuals, and other unknown partners of theirs at Rothstein, Rosenfeldt, Adler, engaged in serious misconduct involving a widely publicized illegal Ponzi scheme operated through their law firm. Rothstein himself admitted to, and was convicted for, this Ponzi scheme, part of which featured the use of civil cases that had been filed against Epstein by Appellant, Rothstein's law partner. In response to Epstein's original lawsuit, Edwards filed a Counterclaim, and after a series of dismissals and four (4) revisions, Edwards stated two causes of action against Epstein; Abuse of Process and Malicious Prosecution. Epstein denied liability as to those claims and asserted various affirmative defenses thereto, including the immunity afforded to Epstein for both causes of action under the 3 EFTA00613592 litigation privilege. In September 2013, Epstein filed his Motion for Summary Judgment, asserting therein, among other arguments, that both causes of action were barred by the litigation privilege. The trial court, after allowing the parties to fully brief the issues and present an exhaustive and extensive oral argument, granted Summary Judgment in favor of Appellee, relying upon the facts as presented by the parties, the binding case Wolfe v. Foreman, 128 So. 3d 67 (Ha. 3d DCA 2013), and all of the Florida Supreme Court cases cited thereby. Both in his Motion for Summary Judgment and at oral argument on the Motion Appellee argued, and Edwards conceded, that Edwards's cause of action for Malicious Prosecution was based solely upon acts that occurred during the course of the litigation. (R. 1203). Edwards's Fourth Amended Counterclaim and his discovery responses to questions directly germane to his causes of action incontrovertibly revealed that both of Edwards's causes of action were barred by the litigation privilege, as all of the actions purported to give rise to Edwards's causes of action occurred during the course of, and were related to, the litigation. The trial court, applying the litigation privilege to Appellant's causes of action, correctly determined that the litigation privilege absolutely barred both causes of action. As stated in Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), and the binding Florida Supreme Court cases cited therein, Florida's 4 EFTA00613593 litigation privilege provides to all persons involved in judicial proceedings a privilege from civil liability for actions taken in relation to those proceedings, including in an action for abuse of process or malicious prosecution. Id. In reliance upon these cases and the facts presented, the trial court granted Summary Judgment in Epstein's favor. SUMMARY OF THE ARGUMENT The solitary issue before this Court is whether the litigation privilege applies to a cause of action for malicious prosecution when all acts upon which Appellant relies in support of his cause of action occurred during the course of litigation and related directly to the litigation. Under well-established Florida Supreme Court precedent, the litigation privilege applies to all causes of action. See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007); Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). Additionally, the Third District Court of Appeal in Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), concluded that the litigation privilege applies to a cause of action for malicious prosecution. Appellant seeks reversal of the final Summary Judgment as to his Malicious Prosecution claim, erroneously arguing that the litigation privilege does not apply to a cause of action for malicious prosecution, and that Wolfe is in conflict with pre-existing law on this issue. See 5 EFTA00613594 Brief, p. 6. Appellant does, however, concede that Summary Judgment was proper as to his Abuse of Process claim, see Brief, p. 10, n.2, and that there are no disputed issues of fact presented. Brief, p. 10. Appellee submits that the trial court's Order granting his Motion for Summary Judgment was proper, as the binding decisions by the Florida Supreme Court in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) and Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), the decision by the Third District Court of Appeal in Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), and the recent per curiam affirmance by the First District Court of Appeal in Steinberg v. Steinberg, 152 So. 3d 572 (Fla. 1st DCA 2014), all mandate the trial court's ruling. Edwards has not identified a single Florida case decided after either the Wolfe decision or the Florida Supreme Court cases upon which the Wolfe court relied in rendering its ruling that establishes that the trial court erred. Accordingly, Summary Judgment was proper. 6 EFTA00613595 ARGUMENT THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT, AS THE LITIGATION PRIVILEGE IS A BAR TO APPELLANT'S CLAIM BASED ON MALICIOUS PROSECUTION. The trial court properly ruled that Summary Judgment was warranted in this case. The undisputed facts, as presented both through Appellee's Motion for Summary Judgment and at oral argument on his Motion, coupled with the law germane to the issues in this matter, established that the litigation privilege absolutely barred both of Edwards's causes of action, mandating that Summary Judgment be granted'. Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013); Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007); Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Ha. 1994). In his Brief, Edwards wholly disregards the incontrovertible fact that his own pleadings and discovery responses undeniably establish that all of the actions about which he complains in his lawsuit occurred solely during the In addition, Appellee argued in his Summary Judgment motion that Appellant could not satisfy all of the elements of a Malicious Prosecution claim, including that the suit by Appellee against Appellant resulted in a bona-fide termination in favor of Appellant. Appellee took a voluntary dismissal without prejudice, which does not constitute a bona-fide termination, one of the six essential elements of a malicious prosecution claim. See Valdes v. GAB Robins, 924 So. 2d 862 (Fla. 3d DCA 2006). Appellant neither addresses nor submits argument as to Appellee's assertion, so this is not addressed in this Answer Brief. Rather, Appellee reasserts all argument as delineated in his original Motion for Summary Judgment and relies thereupon. 7 EFTA00613596 course of, and related directly to, the litigation, rendering them absolutely protected by the litigation privilege. As unequivocally stated in the decision of Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), and the Florida Supreme Court cases cited therein, Florida's litigation privilege provides to all persons involved in judicial proceedings an absolute privilege from civil liability for actions taken in relation to those proceedings, including in an action for abuse of process or malicious prosecution. Id. The Florida Supreme Court explained the following policy reasons for the litigation privilege: 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. Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (emphasis added). Undeniably, a malicious prosecution claim is considered "other tortious behavior" as described by the Florida Supreme Court in Levin. Curiously, Appellant mischaracterizes the Wolfe court's application of the litigation privilege to a malicious prosecution claim as novel, stating in the first paragraph of his Summary of Argument that "there is apparently no other decision in the country that reaches the conclusion that the majority did in Wolfe." See 8 EFTA00613597 Brief, p.8. However, in the case of Steinberg v. Steinberg, 152 So. 3d 572 (Fla. 1st DCA 2014), after considering the appellant's identical challenges to Wolfe, the First District Court of Appeal issued a per curiam affirmance of the trial court's application of the litigation privilege to defeat a malicious prosecution claim. Appellant was undoubtedly aware of the Steinberg decision, as it was Appellant's counsel who not only represented the Appellant in Steinberg, but also filed his own initial brief from the Steinberg case in the instant case as a Supplementary Submission in Support of Edwards' Motion for Reconsideration of the Trial Court's announced intention of granting Summary Judgment, and in that submission adopted "all legal arguments contained within the attached appellate brief." (R. 798). Thus Edwards made the Steinberg argument a part of this case. Further, this Court's recent opinion in McCullough v. Kubiak, 4D13-4048 (Feb. 18, 2015) is instructive. In McCullough, this Court approved the trial court's dismissal of causes of action for both defamation and negligence based upon the litigation privilege. Id. In so doing, this Court examined the litigation privilege and conducted an analysis of the seminal cases upon which Appellee relies in support of his assertion that the trial court's ruling was proper; Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) and Echevarria, McCalla, Raymer, Barrett & 9 EFTA00613598 Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007), and correctly recognized and applied the litigation privilege. Id. This Court continued its analysis, distinguishing DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), a case upon which Appellant relies in support of his argument that the trial court erred. This Court emphasized the "narrow scenario" that existed in DelMonico (i.e., out of court statements to potential witnesses where neither all parties nor the court were present), and stated that it did not exist in McCollough; out of court statements to potential witnesses where neither all parties nor the court were present. Id. at 1209. That "narrow scenario" is likewise absent in the instant case, and as such this Court should affirm the trial court's Order.2 Edwards's Brief endeavors to argue that Wolfe conflicts with pre-existing case law on this issue, providing a history of the litigation privilege and citing to cases that purportedly state that the litigation privilege is inapposite to a cause of action for malicious prosecution. However, all of the cases cited were, incontrovertibly, decided before the Wolfe decision, and most of them before Levin and Echevarria. See Brief, pp. 11-26. Wolfe is directly on point with the facts and law presented in the case at hand, and conducts a detailed analysis of the seminal 2 Rivernider v. Meyer, Case Number 4D14-819 is another trial court decision applying the litigation privilege to a malicious prosecution claim. This decision is on appeal to this Court and is set for Oral Argument on April 28, 2015. 10 EFTA00613599 Florida Supreme Court cases germane to the issues. In Wolfe, the Third District Court of Appeal affirmed the trial court's order granting a motion for judgment on the pleadings in an abuse of process and malicious prosecution action, finding that the litigation privilege applied to, and barred, both causes of action. Id. (emphasis added). The court's focus was on whether the acts alleged "occurr[ed] during the course of a judicial proceeding" and had "some relation to the proceeding." Id. at 68 (citing Levin, 639 So. 2d at 608). Likewise, in conducting its analysis of the cause of action for malicious prosecution, which, just as with the instant case, was based on the filing of a complaint, the Wolfe court stated that it is: guided and restrained by the broad language and application of the privilege articulated by the Florida Supreme Court in Levin and Echevarria. In Levin, the Florida Supreme Court held that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding . . . so long as the act has some relation to the proceeding." Levin, 639 So. 2d at 608. In Echevarria, the Court reiterated its broad application of privilege "applies in all causes of action, statutory as well as common law." Echevarria, 950 So. 2d at 380-81. Id. at 68. The Wolfe court continued, unequivocally stating that: It is difficult to imagine any act that would fit more firmly within the parameters of Levin and Echevarria than the actual filing of a complaint. The filing of a complaint, which initiates the judicial proceedings, obviously "occurs during the course of a judicial proceeding" and "relates to the proceeding . . . Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all 11 EFTA00613600 causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be "free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct," we are obligated to conclude that the act complained of here -- the filing of the complaint — is protected by the litigation privilege. Wolfe v. Foreman, 128 So. 3d 67, 68 (Fla. 3d DCA 2013) (emphasis added). Additionally, the Wolfe decision was recently cited with approval and relied upon in Jackson v. Attorney's Title Insurance Fund, 132 So. 3d 1191 (Fla. 3d DCA 2014) and American Federated Title Corp. v. Greenberg Trauig, P.A., 125 So. 3d 309 (Fla. 3d DCA 2013) in matters involving the litigation privilege. In the instant case, the trial court was legally bound by the Third District Court of Appeal's decision in Wolfe, as the Florida Supreme Court stated unequivocally that a "trial court may not overrule or recede from the controlling decision of" an appellate court. Pardo v. State, 596 So. 2d 665 (Ha. 1996). Just as in Wolfe, all of the actions upon which Appellant relied in his lawsuit against Appellee occurred during the course of, and were directly related to, the litigation. At the Summary Judgment hearing, the following colloquy occurred: THE COURT: Anything outside of the judicial proceeding as potentially or allegedly obnoxious? And as Mr. King brought out earlier the allegations being horrifying, egregious, no matter how you might identify those allegations that were quickly withdrawn, anything that you're aware of that went on outside of the judicial process that is being alleged here? 12 EFTA00613601 MR. BREWER: Not that is being alleged here, Your Honor, no. THE COURT: Mr. King, anything that's being alleged here that goes outside of the broad spectrum that I have read into the record that has its genesis in Echevarria and was quoted by the Wolfe Third District Court of Appeal opinion? MR. KING: There's nothing alleged. (T. 53-54). Accordingly, as explicitly stated in Edwards's own pleadings and discovery responses, and as conceded by Edwards's counsel at oral argument, the events giving rise to Edwards's purported claims against Epstein occurred solely in the course of, and were related to, the litigation, just as occurred in the Wolfe case, mandating Summary Judgment. Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013); American Nat. Title & Escrow of Florida, Inc. v. Guarantee Title & Trust, Co., 748 So. 2d 1054, 1056 (Fla. 4th DCA 1999). See also Montejo v. Martin Memorial Medical Center, Inc., 935 So. 2d 1266, 1269 (Fla. 4th DCA 2006); Fridovich v. Fridovich, 598 So. 2d 65 (Ha. 1992) (stating that the litigation privilege "arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto."). Moreover, the Federal courts, in applying Florida's litigation privilege, have recognized that it has been "expansively interpreted" by Florida courts. In 13 EFTA00613602 Microbilt Corporation v. Chex Systems, Inc., 2013 WL 6628619 (Dec. 16, 2013), the Bankruptcy Court, applying Florida law, avowed: The rule of absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the judicial proceedings. DelMonico v. Traynor, 50 So.3d 4, 7 (Fla. Dist. Ct. App. 2010). The Florida Supreme Court found that absolute litigation immunity was designed to allow a party to `prosecut[e] or defend[] a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.' Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007); see also Levin, 639 So.2d at 608 C[A]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding [...], so long as that conduct has some relations to the proceeding.'). To this end, Florida courts have expansively interpreted the `relates to' requirement. See Rolex Watch U.S.A. Inc. v. Rainbow Jewelry, Inc., 2012 WL 4138028 (S.D. Fla. Sept. 19, 2012) (`[t]he decision to file a lawsuit clearly relates to a judicial proceeding'); DelMonico v. Traynor, 116 So.3d 1205, 1217, 1219 (Fla. 2013) (privilege applies when statements or actions occur `either in front of a judicial officer or in pleading or documents filed with the court or quasi-judicial body'). Id. at *2. See also Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1276 (11th Cir. 2004). In its Order on Appellee's Motion for Summary Judgment, the trial court also correctly determined that "the cases cited by Edwards [in his opposition to Summary Judgment] involved malicious prosecution claims stemming from actions filed by the party themselves [sic], not counsel. In the instant case, it was conceded that all filings were done by an attorney in good standing with the 14 EFTA00613603 Florida Bar, rather than by an individual party." See Trial Court Order granting Summary Judgment. (R. 1202-1205). The law is clear that the Wolfe holding protects both the firm that filed suit and the individual plaintiff, as it unequivocally states that "the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be 'free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.' Wolfe v. Foreman, 28 So. 3d 67 (Fla. 3d DCA 2013). See also Levin, 639 So. 2d at 608 ("[t]he immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties, but to judges, witnesses and counsel as well.") In fact, in R.H. Ciccone Properties, Inc. v. JP Morgan Chase Bank, N.A., 141 So. 3d 590 (Fla. 4th DCA 2014), this Court correctly recognized that "'[t]he purpose of the litigation privilege is to 'free [participants in litigation] to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct?" Id. at 593 (quoting Levin, 639 So. 2d at 608). Appellant correctly acknowledges that in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) the Florida Supreme Court 15 EFTA00613604 not only reaffirmed the Levin decision but also expanded it to include "any act occurring during the course of judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious conduct ... so long as the act has some relation to the proceeding," finding that the policy considerations were the "perceived necessity for candid and unrestrained communications in judicial proceedings." Echevarria, 950 So. 2d at 384; Brief, p. 15. Echevarria unequivocally recognized that "Levin plainly establishes that `[t]he rationale behind the immunity afforded to a defamatory statement is equally applicable to other misconduct occurring during the course of a judicial proceeding," and that "the nature of the underlying dispute simply does not matter." Id. at 384. The Echevarria court concluded by avowing that "[t]he litigation privilege applies across the board to actions in Florida." Id. at 384 (emphasis added). Lacking any relevant precedent to refute the broad expansion of the litigation privilege expressly demanded by Echevarria or the application of the litigation privilege to malicious prosecution claims as required by Wolfe, Appellant asks this Court to ignore Echevarria and Wolfe, urging that application of the litigation privilege to a malicious prosecution claim would completely eviscerate the cause of action for malicious prosecution. However, that very same argument was flatly rejected in both Wolfe and Steinberg. The Wolfe decision, as well as the 16 EFTA00613605 Levin and Echevarria decisions, merely hold 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." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). As a result, if a party seeks to bring a cause of action involving acts that neither occurred during, nor had relation to, the judicial proceeding, a cause of action sounding in malicious prosecution may still be viable. See Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992); Olson v. Johnson, 961 So. 2d 356 (Ha. 2d DCA 2007). Moreover, the Florida Supreme Court judiciously pointed out in Levin that "other tortious conduct during litigation" is still subject to available remedies even though it may be privileged. The Supreme Court held that misconduct by counsel or parties during litigation is "left to the discipline of the courts, the Bar association, and the state." Id. at 608 (emphasis added). As such, contrary to Appellant's assertion, there is neither an absolute bar to all malicious prosecution actions nor an evisceration of adequate legal remedies created by the Wolfe case and its progeny. Rather, these cases only extend a well-established privilege "to any act occurring during the course of a judicial proceeding, regardless of whether 17 EFTA00613606 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." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). See also Echevarria, 950 So. 2d at 384; Wolfe v. Foreman, 28 So. 3d 67, 68 (Fla. 3d DCA 2013). Consequently, based on the undeniable holdings in Wolfe and the cases cited therein, Epstein's actions were absolutely protected by the litigation privilege and Summary Judgment was properly granted. Additionally, Appellant attempts to support his position by referencing the most recent Florida Supreme Court decision applying litigation privilege, DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), which held that statements made outside of the formal judicial process are not protected by the absolute litigation privilege, but rather enjoy a qualified privilege. Id. at 1217. The DelMonico Court's ruling, however, does not limit the Levin and Echevarria rulings. Instead, it is specific to the extremely confined facts in that matter, which were described by the Florida Supreme Court as a "narrow scenario;" referring to out of court statements to potential witnesses where neither both parties nor the court were present. Id. at 1209. Further, the Delmonico decision clarified that the existence of judicial oversight in a proceeding is an important reason behind the 18 EFTA00613607 requirement to apply the privilege to cover acts that occur during the course of, and are related to, the judicial proceeding, stating: "when weighing whether to apply the absolute privilege to that factual scenario, the Court considered that the `safeguards' arising from the `comprehensive control exercised by the trial judge whose action is reviewable on appeal' and the availability of other remedies through which the trial court could mitigate the harm. . ." Id. at 1215 (citing Fridovich, 598 So. 2d at 69). Accordingly, the DelMonico decision affirmatively recognized a litigation privilege where, as in the instant case, there is judicial oversight, but distinguished the "narrow scenario" under which the litigation privilege would not be applied. Inasmuch as that "narrow scenario" is wholly absent in the case at bench, DelMonico is factually distinguishable and inapposite to the instant case, and as such its narrow holding has no bearing on, and should not be considered by, this Court. Similarly, Appellant cites Wright v. Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984) in support of his assertion that the litigation privilege is inapplicable to a malicious prosecution claim. However, such reliance thereupon is misplaced. First, Appellant's characterization of Levin as impliedly approving the survival of a malicious prosecution claim in the Wright case is completely unfounded. In Levin, 19 EFTA00613608 in support of its holding to apply the litigation privilege to a tortious interference claim, the Florida Supreme Court analyzed Wright and cited thereto solely for two propositions: "that the torts of perjury, slander, defamation and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable;" and that "[r]emedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state," and as such "other tortious conduct occurring during litigation is equally susceptible to that same discipline." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (citing Wright, 446 So. 2d at 1164). Accordingly, Levin neither held nor cited to Wright for the proposition that the litigation privilege was inapplicable to a malicious prosecution claim. Second, regardless of what Appellant requests this Court to infer about Wright as a result of its citation in Levin, the Florida Supreme Court subsequently made it abundantly clear in Echevarria that "the nature of the underlying dispute simply does not matter," and mandated that the litigation privilege be broadly applied "across the board to actions in Florida." Echevarria, 950 So. 2d at 384. Accordingly, no matter how the underlying cause of action may be framed, the express guidance from both Levitz and Echevarria is that the litigation privilege 20 EFTA00613609 would be applied to immunize any and all conduct occurring during the course of judicial proceedings so long as it occurred in, and had some relation to, the proceeding. Id. at 384. Finally, Wright is factually distinguishable, because unlike in the instant case, Wright included a cause of action against the attorney who filed the alleged malicious prosecution, not the represented Plaintiff. Wright, 446 So. 2d at 1163. Consequently, this Court should give no consideration to this case. Likewise, Appellant's reliance on Graham-Eckes Palm Beach Academy v. Johnson, 573 So. 2d 1007 (Fla. 4th DCA 1991), is equally as misplaced. Graham- Eckes is a per curiam affirmance in which the Fourth District Court stated, in its single concluding sentence: "[w]hile 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)." Id. at 1008. As with Wright, it is undeniable that Graham-Eckes was decided before Echevarria, Levin, and Wolfe. Further, Procacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981), the case upon which the Graham-Eckel court relied in issuing its decision, immunized from suit the "malicious publication" of false statements because they were made during the course of a judicial proceeding. As to those false statements, this Court avowed: "Appellants contend that a proper notice of lis pendens, based on a recorded instrument and filed pursuant to Florida 21 EFTA00613610 law, is a publication much like a pleading or other statement made in the course of a judicial proceeding and therefore, they argue, it enjoys the same immunity. We agree." Id. at 427. Appellant's reliance on Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992) is also erroneous, as in Fridovich the Florida Supreme Court specifically concluded that only a qualified privilege is applicable when private individuals voluntarily make defamatory statements "to the police or the state's attorney prior to the institution of criminal charges." 598 So. 2d at 69 (emphasis added). See also Olson v. Johnson, 961 So. 2d 356 (Fla. 2d DCA 2007) (litigation privilege is inapplicable because basis of lawsuit arose out of statements made to a police officer prior to the initiation of a criminal proceeding). In stark contrast to both the Fridovich and Olson cases, where the conduct occurred prior to any judicial proceedings, the actions upon which the Appellant relies as the basis of his malicious prosecution claim in the instant case were made in and were integral to the judicial proceedings, rendering Fridovich and Olson inapposite. Further, Appellant's citation to dicta from a footnote in SCI Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 702 (Fla. 3d DCA 2002) is equally inapplicable because it is a Third District Court of Appeal case that did not involve a claim for malicious prosecution and was decided before the Third District Court of Appeal decided 22 EFTA00613611 Wolfe, in which it expressly held that the litigation privilege is applicable to a claim for malicious prosecution. Finally, Appellant erroneously submits and analyzes cases from other jurisdictions in further support of his assertion that the litigation privilege does not bar a malicious prosecution claim. Appellant's argument is meritless, as it is incontrovertible that reliance upon these cases is misguided; other jurisdictions are not controlling upon this Court, especially when there is binding Florida precedent directly applicable hereto. Additionally, the Florida Litigation Privilege is a court created doctrine, and as such, case law from other jurisdictions is of no import and has no bearing on this matter. Moreover, binding Florida precedent does not, contrary to Appellant's assertion, bar a malicious prosecution claim. hut rather affords an absolute privilege to acts that occur within, and have a relation to, a judicial proceeding. Wolfe, 28 So. 3d at 68; Levin, 639 So. 2d at 608; Echevarria, 950 So. 2d at 384. The Florida Supreme Court, the First District Court of Appeal, and the Third District Court of Appeal have all undeniably extended the litigation privilege to circumstances such as those present in the case at bench; where all of the acts upon which a party relies in support of a malicious prosecution claim occur within the litigation. Consequently, Summary Judgment was proper. 23 EFTA00613612 CONCLUSION In reliance upon the argument submitted above and the case law cited herein, Appellee submits that the trial court's Order granting Appellee's Motion for Summary Judgment should be affirmed. CERTIFICATE OF TYPE SIZE AND STYLE This Brief is typed using Times New Roman 14 point, a font which is not proportionately spaced. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy was electronically served to the following on February 25, 2015: William B. King Searcy Denny Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Blvd. 3409 Bradley J. Edwards Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 N. Andrews Ave., Ste. 2 Mark Nurik Law Offices of Mark S. Nurik 1 E. Broward Blvd., Ste. 700 Ft. Lauderdale, FL 33301 Philip M. Burlington Burlington & Rockenbach, P.A. Courthouse Commons/Suite 350 444 W. Railroad Avenue West Palm Beach, FL 33401 Fred Haddad Fred Haddad, P.A. 1 Financial Plaza, Ste. 2612 Ft. Lauderdale FL 01 Jack Goldberger Atterbury, Goldberger & Weiss, P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach FL 33401 24 EFTA00613613 W. Chester Brewer, Jr. W. Chester Brewer, Jr. P.A. 250 S. Australian Ave., Ste. 1400 WestP m B h FL 33401 /s/ John Beranek JOHN BERANEK Fla. Bar No.: 0005419 AUSLEY & MCMULLEN, P.A. 123 South Calhoun Street P.O. Box 391 (zip 32302) /s/ Tonja Haddad Coleman Tonja Haddad Coleman, Esq. Florida Bar No.: 176737 Tonja Haddad, PA 5315 SE 7th Street Suite 301 Fort Lauderdale Florida 33301 25 EFTA00613614