IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D PRO-ART DENTAL LAB, INC., Appellant, vs.

Transcription

1 E-Copy Received Oct 3, :37 PM IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D PRO-ART DENTAL LAB, INC., Appellant, vs. GREENBERG TRAURIG, P.A. AND CRAIG S. BARNETT, Appellees. On Appeal from the Seventeenth Judicial Circuit Court In and for Broward County, Florida Lower Tribune Case No CACE (08) ANSWER BRIEF OF APPELLEES GREENBERG TRAURIG, P.A. AND CRAIG S. BARNETT Paul J. Schwiep, Fla. Bar No COFFEY BURLINGTON, P.L South Bayshore Drive, Penthouse Miami, Florida Tel: (305) Fax: (305) Counsel for Appellees

2 TABLE OF CONTENTS Page TABLE OF CITATIONS... ii STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 1 A. The Prior Eviction Proceeding... 1 B. Pro Art s Abuse of Process and Malicious Prosecution Claims Against V-Strategic and Greenberg SUMMARY OF ARGUMENT... 8 ARGUMENT...10 A. The Trial Court Properly Granted Summary Judgment on Pro Art s Claim for Malicious Prosecution There Was No Bona Fide Termination in Pro Art s Favor There was no Record Evidence That Greenberg Lacked Probable Cause To File The Underlying Lawsuit Absence of Malice...19 B. The Elements of An Abuse of Process Claim are Absent C. The Absolute Immunity For Acts Occurring in the Course of Litigation Prevents Assertion of Any Tort Claims D. The Trial Court Properly Granted Summary Judgment as to the Conspiracy Count CONCLUSION...31 CERTIFICATE OF SERVICE...31 CERTIFICATE OF COMPLIANCE...32 i

3 Cases Case No. 4D TABLE OF CITATIONS Page Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, (Fla. 1994)...10 American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Co., 748 So. 2d 1054 (Fla. 4th DCA 1999)...23 Anderson v. Rossman & Baumberger, P.A., 440 So. 2d 591 (Fla. 4th DCA 1983)...25 Arison Shipping Co. v. Hatfield, 352 So. 2d 539 (Fla. 3d DCA 1977)... 12, 13 Behm v. Campbell, 925 So. 2d 1070 (Fla. 5th DCA 2006)...14 Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3rd DCA 1981), rev. denied, 412 So. 2d 463 (Fla. 1982) 30 Burns v. GCC Beverages, Inc., 502 So. 2d 1217 (Fla. 1986)...11 C.A. Hansen Corp. v. Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, P.A., 613 So.2d 1336 (Fla. 3d DCA 1993)...17 Calbeck v. Town of South Pasadena, Florida, 128 So. 2d 138 (Fla. 2d DCA 1961)...14 Carter v. City of St. Petersburg, 319 So. 2d 602 (Fla. 2d DCA 1975)...14 Cazares v. Church of Scientology, 444 So. 2d 442 (Fla. 5th DCA 1983)...21 Cent. Fla. Mach. Co., Inc. v. Williams, 424 So. 2d 201 (Fla. 2d DCA 1983)... 16, 17 Central Fla. Mach. Co., Inc. v. Williams, 424 So.2d 201 (Fla. 2d DCA 1983)...17 City of Pensacola v. Owens, 369 So. 2d 328 (Fla.1979)...16 ii

4 Clark v. Druckman, 624 S.E.2d 864 (W. Va. 2005)...29 Cmty. Nat l Bank of Bal Harbour v. Burt, 183 So. 2d 731 (Fla. 3d DCA 1966)...11 Della-Donna v. Nova Univ., Inc., 512 So. 2d 1051 (Fla. 4th DCA 1987)... 11, 20, 21 Doss v. Bank of Am., N.A., 857 So. 2d 991 (Fla. 5th DCA 2003)...11 Duval Jewelry Co. v. Smith, 136 So. 878 (Fla. 1931)...11 Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007)... 26, 27, 29 EMI Sun Village, Inc. v. Catledge, Case No. 13-CV-21594, 2013 WL (S.D. Fla. Sept. 27, 2013)...23 Endacott v. Int'l Hospitality, Inc., 910 So. 2d 915 (Fla. 3d DCA 2005)...17 Erp v. Carroll, 438 So. 2d 31 (Fla. 5th DCA 1983)...20 Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So. 2d 412 (Fla. 4th DCA 1980, cert. denied, 388 So. 2d 1119 (Fla. 1980).17 Fisher v. MAAS Brothers, Inc., 149 So. 2d 910 (Fla. 2d DCA 1963)...14 Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992)...25 Gallucci v. Milavic, 100 So. 2d 375 (Fla. 1958)...15 Goldstein v. Sabella, 88 So. 2d 910 (Fla. 1956)... 14, 15, 16 In re Sav-A-Stop, Inc., 98 B.R. 83 (Bankr. M.D. Fla. 1989)...12 Kern v. Modernage Furniture Corp., 125 So. 2d 893 (Fla. 3d DCA 1961)...14 iii

5 LatAm Invs., LLC v. Holland & Knight, LLP, 88 So. 3d 240 (Fla. 3d DCA 2011), rev. denied, 81 So. 3d 414 (Fla. 2012)...23 Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606, 608 (Fla. 1994)... 23, 25, 27, 29 Liappas v. Augoustis, 47 So. 2d 582 (Fla. 1950)...30 Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002)...27 Myers v. Hodges, 44 So. 357 (Fla. 1907)...24 Ovadia v. Bloom, 756 So. 2d 137 (Fla. 3d DCA 2000)...30 Pickard v. Maritime Holdings Corp., 161 So. 2d 239 (Fla. 3d DCA 1964)...24 Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989)...24 Pro-Art Dental Lab, Inc. v. V-Strategic Group, 959 So. 2d 753 (Fla. 4th DCA 2007), decision quashed, 986 So. 2d 1244 (Fla. 2008)... 3 Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244, 1259 (Fla. 2008)... 4, 16, 18 Rainier s Dairies v. Raritan Val. Farms, 117 A.2d 889 (N.J. 1955)...29 Regal Marble, Inc. v. Drexel Invs., Inc., 568 So. 2d 1281 (Fla. 4th DCA 1990)...25 Rioux v. Barry, 927 A.2d 304 (Conn. 2007)...29 Rowen v. Holiday Pines Prop. Owners Ass n, Inc., 759 So. 2d 13 (Fla. 4th DCA 2000), rev. denied, 790 So. 2d 1104 (Fla. 2001)... 11, 13 S & I Inv. v. Payless Flea Markets Inc., 36 So. 3d 909 (Fla 4th DCA 2010)... 20, 21, 22 iv

6 Santos v. State, 629 So. 2d 838 (Fla. 1994)...18 Silberg v. Anderson, 786 P.2d 365 (Cal. 1990)...29 Simpson Strong-Tie Co. Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007)...29 Sussman v. Damian, 355 So. 2d 809 (Fla. 3d DCA 1977)...25 United Technologies Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009)...30 Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013)... passim Statutes Chapter 51, Florida Statutes (2006)... 3 Section , Florida Statutes... 2 Section , Florida Statutes...5, 27 Section 83.21, Florida Statutes... 3 Rules Florida Rule of Civil Procedure 1.500(c)... 3 Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure...31 Rules Regulating The Florida Bar Constitutional Provisions Article V Section 3(a), Florida Constitution...18 v

7 STATEMENT OF THE CASE Defendants/Appellees Greenberg Traurig, P.A. and Craig Barnett (collectively, Greenberg ) adopt Plaintiff/Appellant Pro-Art Dental Lab, Inc. s ( Pro Art ) Statement of the Case. STATEMENT OF THE FACTS Pro-Art appeals a summary judgment granted in favor of Greenberg on Pro Art s claims for abuse of process and malicious prosecution arising out of Greenberg s representation of Pro-Art s landlord, V-Strategic Group, LLC ( V- Strategic ) in a tenant eviction action filed in Broward County Court. The record evidence is set forth below. A. The Prior Eviction Proceeding In 2006, a dispute arose between appellant Pro Art, as tenant, and V- Strategic, as landlord, regarding an agreement to terminate a lease. (See A-100.) 1 V-Strategic filed suit through unrelated counsel in Miami-Dade County to enforce the termination agreement (the lease termination action ). (Id.) On March 30, 2006, a final judgment was entered in favor of V-Strategic finding that [Pro Art 1 Items in Greenberg s Appendix will be cited as A- followed by the appropriate page number or (A-.) Citations to the Record on Appeal will be cited as R- followed by the appropriate page number or (R-.) 1

8 breached the [Termination] Agreement by failing to vacate the Leased Premises. (A-666.) 2 Following the entry of final judgment in V-Strategic s favor in the lease termination action, Greenberg filed on V-Strategic s behalf a suit in county court in Broward County to recover possession of the leased premises (the eviction action ) and invoked the summary procedures available in eviction actions under Section , Florida Statutes. (A-348.) Pro Art moved to dismiss the eviction action arguing that the county court lacked subject matter jurisdiction because the complaint was labeled as one for ejectment, which is within the circuit court s jurisdiction. (R-1489.) Following a hearing at which V-Strategic represented that it was seeking only eviction, County Judge Lisa Trachman held that even though the complaint was titled an action for ejectment, the action was in substance was one to recover possession of the leased premises and thus was within the county court s jurisdiction: The way I see this case, even though you call it an ejectment, really more is in the nature of - - as it is alleged, in the nature of a tenant sufferance (A-195.) Because Pro Art failed to timely assert any other defenses of law or fact within five days of service of process as required by Section (1), the court 2 The Miami-Dade final judgment was thereafter vacated by order dated April 25, (R-1800.) 2

9 granted V-Strategic s motion for default and issued final judgment of possession in V-Strategic s favor. (Id.; see also A-668.) Pro-Art appealed the county court s final judgment. In an opinion authored by then-circuit Judge Damoorgian writing on behalf of the circuit court sitting in its appellate capacity, the court affirmed the county court s default judgment. (R ) The circuit court held that the county court possessed subject matter jurisdiction over the action under Section 83.21, Florida Statutes, pertaining to tenant removal actions. (Id.) The court found that the county court properly looked past the title of V-Strategic s complaint to the substance of the relief requested, which was for eviction, to find subject matter jurisdiction. (Id. at 748.) The circuit court also held that the county court correctly found Pro Art defaulted by failing to assert legal or factual defenses to the eviction case within five days as required under the summary proceedings statute. (Id. at 749.) On petition for certiorari review, this Court unanimously denied Pro Art s petition and affirmed the county court judgment of eviction. Pro-Art Dental Lab, Inc. v. V-Strategic Group, 959 So. 2d 753 (Fla. 4th DCA 2007), decision quashed, 986 So. 2d 1244 (Fla. 2008). This Court, however, certified a conflict to the Florida Supreme Court with respect to the interplay between summary proceedings under Chapter 51, Florida Statutes (2006), and Florida Rule of Civil Procedure 1.500(c). 959 So. 2d at

10 A splintered Florida Supreme Court quashed this Court s ruling. In a plurality opinion authored by Justice Lewis in which only Justice Quince and Justice Anstead joined (Justices Bell, Wells and Cantero concurred only in the result with Justice Wells authoring a separate concurrence in which only Justice Cantero joined (Justice Pariente recused)), Justice Lewis found that the county court should not have recast the ejectment action as an eviction case, and, thus, jurisdiction was lacking in county court. Justice Lewis also found that the summary procedures of Fla. Stat. Chapter 51 were inapplicable. See Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244, 1259 (Fla. 2008). The plurality concluded that Pro Art should have been permitted to defend on the merits. Id. The Supreme Court did not, however, reach the merits of the dispute, instead remanding to the county court. Id. at The plurality expressly stated they were not addressing the merits of V-Strategic s claim a question best addressed by the appropriate trial court that might consider this dispute. Id. at 1246 n.2. In concurring in the result, Justices Wells and Cantero agreed that the case should proceed to a merits determination before the county court. Id. at On remand to the county court, Pro Art moved to dismiss the action on the ground that subject matter jurisdiction was lacking. (A-674.) The county court dismissed the case expressly for lack of subject matter jurisdiction. (Id.) Pro Art then moved for an award of attorneys fees and costs under Section 4

11 against V-Strategic and Greenberg, arguing that the eviction action lacked merit. (A ) The county court denied Pro Art s motion, finding that Pro Art had made no showing that Greenberg knew or should have known that the case lacked merit, and that there had been no resolution on the merits. (Id.) The county court stated: 1. there has been no showing that [Greenberg Traurig], or the Plaintiff, knew or should have known that the lawsuit filed in this case was without merit based upon the facts or the law in existence at the time the lawsuit was filed. 2. there has been no adjudication on the merits of this case and the dismissal of this case does not constitute an adjudication on the merits. (See A-184.) 3 No appeal was taken by Pro Art from the denial of its motion for attorneys fees. B. Pro Art s Abuse of Process and Malicious Prosecution Claims Against V-Strategic and Greenberg. Pro Art subsequently filed suit against V-Strategic and Greenberg for abuse of process and malicious prosecution. After its first two complaints were dismissed, on September 3, 2009, Pro Art filed its Second Amended Complaint ( SAC ) against V-Strategic, Greenberg Traurig, and Greenberg shareholder, Craig Barnett. (A-39.) The SAC alleged three counts against Greenberg and Barnett: 3 Emphases added unless otherwise stated. 5

12 Count III for malicious prosecution; Count IV for abuse of process, and Count VI for conspiracy to commit abuse process and malicious prosecution, which is alleged against all of defendants. (Id. at ) Pro Art also brought claims against V- Strategic for malicious prosecution and abuse of process. (A-59.) In discovery, Pro Art s corporate representative admitted that Pro Art was unaware of any fraud or perjury that led to entry of the county court s judgment of eviction: Q: Was there as Pro-Art Dental s corporate representative here to support its allegations in the second amended complaint can you identify any perjury by anyone, made in connection with the entry of the final judgment for possession we re looking at, that s marked as Defendant s Exhibit 15? A: No. Q: Can you identify fraud by anyone in connection with the entry of this final judgment? A: No. * * * Q: As Pro-Art Dental s corporate representative today, is there any statement made by Craig Barnett or Ivonne Barroso from Greenberg Traurig, that as you look at this [hearing transcript from May 1, 2006] today, or as you ve looked at in the past, that you contend, that Pro-Art Dental contends, is false, fraudulent or intentionally deceitful? A: I couldn t say. (A-321, 323, ) 6

13 Pro Art also acknowledged that there was no evidence that Greenberg engaged in any conduct that was false, fraudulent or deceitful at any juncture in the proceedings. (See id. at 323: Q: As [Pro Art s] corporate representative today, is there any statement made by Craig Barnett or from Greenberg Traurig that as you look at this today is false, fraudulent or intentionally deceitful? A: I couldn t say. ) Pro Art acknowledged that it had no evidence that anyone at Greenberg engaged in any improper conduct in connection with the entry of the county court judgment. (Id. at 321, 323, ) Pro Art had no evidence that anyone at Greenberg acted with malice towards Pro Art, which was simply the adversary of Greenberg s client V-Strategic. (Id. at 317.) Also, Pro Art could not identify any manner in which Greenberg or V- Strategic misused or otherwise perverted process once it had been obtained. (A- 318: Q. [C]an you tell me, as you sit here today, any manner in which Greenberg or Craig Barnett improperly used a legal process against [Plaintiff], that is, perverted use of it after it was obtained? A. No. ) For its part, Greenberg, through Barnett, presented evidence as to the basis for its reasonable belief that the eviction action had factual and legal merit. Barnett explained that documents exchanged between Pro Art s and V-Strategic s counsel reflected an agreement to terminate the lease an agreement that had been confirmed by the Miami-Dade Circuit Court s final judgment against Pro Art in the 7

14 lease termination action, which preceded the filing of the eviction action. (A-440 & A-666.) Barnett explained the eviction action was reasonably premised upon the existence then of a default judgment which deemed admitted the allegations in the Miami-Dade County Circuit Court case relative to the existence of the termination agreement [and] correspondence between [Landlord s] counsel and counsel for Pro-Art Dental indicating what I believe to be an offer which had then [been] accepted with respect to the termination agreement. (A-440.) Upon the conclusion of discovery, Greenberg moved for summary judgment. (A-1.) The court heard lengthy argument on April 1, (R-2134.) On June 14, 2013, the circuit court granted Greenberg s motion. (A-664.) This appeal followed. SUMMARY OF ARGUMENT The trial court correctly granted summary judgment in favor of Greenberg on Pro Art s claims for malicious prosecution and abuse of process arising out of Greenberg s representation of Pro Art s landlord in the eviction case. The trial court rejected correctly the malicious prosecution claim for three reasons. 1. There was no bona fide termination of the eviction case in Pro Art s favor, which is required. Neither the Florida Supreme Court nor any other court, reached the merits of the underlying eviction case. The county court dismissed the eviction case for lack of subject matter jurisdiction. As a matter of binding Florida 8

15 law, dismissal for lack of subject matter jurisdiction does not constitute a bona fide termination of the underlying action in the plaintiff s favor. 2. There was no evidence that Greenberg lacked probable cause for the eviction case, which is an element of a malicious prosecution claim. As a matter of binding Florida law, the judgment and judicial rulings in favor of Greenberg s client, V-Strategic, in the county, circuit and district court of appeal constitute conclusive and incontrovertible proof that the eviction action was supported by probable cause. 3. The record is devoid of evidence that Greenberg acted with malice against Pro Art, which is an element of malicious prosecution. The trial court also correctly granted summary judgment in favor of Greenberg on Pro-Art s abuse of process claim. This is because there was no evidence presented to establish that Greenberg used process for purposes other than that for which it was obtained. The record is uncontroverted that process in the eviction action was obtained precisely for the purpose for which it was sought to evict Pro Art. Pro Art produced no evidence of any misuse or perversion of process after it was obtained. Finally, the trial court s summary judgment is correct because Greenberg acted solely in its capacity as counsel to its client in the course of judicial 9

16 proceedings and, thus, as a matter of law, its actions are protected by Florida s litigation privilege. In the absence of any genuine issue of law or fact, Pro Art s claims for malicious prosecution and abuse of process, and, by extension, conspiracy to commit malicious prosecution or abuse of process against Greenberg were not viable. Summary judgment was appropriately entered against Pro Art. ARGUMENT A. The Trial Court Properly Granted Summary Judgment on Pro Art s Claim for Malicious Prosecution. To prevail in a malicious prosecution action, a plaintiff must establish: (1) the commencement or continuance of an original judicial proceeding; (2) its legal causation by the present defendant against the present plaintiff who was the defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) a lack of probable cause for such proceeding; (5) the presence of malice; and (6) damages resulting to the present plaintiff as a result of the original proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994). If the plaintiff is unable to prove any one of these elements, the malicious prosecution action fails as a matter of law: All these elements must be established by a preponderance of the evidence, and the burden of proving them, including the concurrence of malice and want of probable cause, is on the plaintiff. 10

17 Cmty. Nat l Bank of Bal Harbour v. Burt, 183 So. 2d 731, 733 (Fla. 3d DCA 1966) (quoting Duval Jewelry Co. v. Smith, 136 So. 878, 880 (Fla (quotation marks omitted); see also Burns v. GCC Beverages, Inc., 502 So. 2d 1217 (Fla. 1986). Here, summary judgment was proper on the malicious prosecution claim because Pro Art failed to establish any genuine issue of fact requiring a trial as to the third (bona fide termination in plaintiff s favor), fourth (lack of probable cause) and fifth (malice) elements. 1. There Was No Bona Fide Termination in Pro Art s Favor There is no dispute that the eviction action was dismissed for lack of subject matter jurisdiction. (See A-674.) This Court holds that [a] dismissal for lack of subject matter jurisdiction is not a bona fide termination because there must first be jurisdiction in the court in which the proceeding terminates. See Rowen v. Holiday Pines Prop. Owners Ass n, Inc., 759 So. 2d 13 (Fla. 4th DCA 2000), rev. denied, 790 So. 2d 1104 (Fla. 2001); see also Doss v. Bank of Am., N.A., 857 So. 2d 991, 995 (Fla. 5th DCA 2003) ( [S]uits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not bona fide terminations ); Della-Donna v. Nova Univ., Inc., 512 So. 2d 1051, 1057 (Fla. 4th DCA 1987) (upholding a dismissal because the plaintiff lacked standing to file suit is not a bona fide termination in the defendant s favor permitting pursuit of a malicious prosecution claim); Arison Shipping Co. v. 11

18 Hatfield, 352 So. 2d 539, (Fla. 3d DCA 1977) ( It is our opinion that a dismissal for lack of subject matter jurisdiction is not an adjudication on the merits and thus, not a bona fide termination of the prior civil suit. ); In re Sav-A-Stop, Inc., 98 B.R. 83, 86 (Bankr. M.D. Fla. 1989) (holding that a dismissal for lack of personal jurisdiction is insufficient to constitute a termination in [the plaintiff s] favor ). Pro Art concedes, as it must, that the eviction case was dismissed on jurisdictional grounds. In an effort to circumvent the failure on this element of its malicious prosecution claim, Pro Art argues that Greenberg should have pursued the eviction case after dismissal and, because it did not, the dismissal should be construed as Pro Art s merits-based win. (Pro Art Brief at 34.) Pro Art cannot cite to any Florida case in which the court held that dismissal for lack of subject matter jurisdiction could be deemed an adjudication on the merits because merely because the plaintiff below did not refile its lawsuit elsewhere. Pro Art admits in its Brief (id.) that at the time of the dismissal, and given the length of time that had elapsed (through no fault of V-Strategic or Greenberg) while the eviction judgment worked its way through the appellate process, V-Strategic had no further interest in pursuing the eviction action. Greenberg was not a party to the prior litigation. It had no ability to litigate the case to a merits resolution. The prior litigation was not abandoned; to the contrary, years after a final judgment of eviction was entered in 12

19 V-Strategic s favor the action was dismissed on jurisdictional grounds and by that time the issue was moot. It would have been vexatious for V-Strategic to pursue the case given the circumstances, and Greenberg, as V-Strategic s counsel, could not have litigated the matter independently of its client anyway. Because the prior action was dismissed on jurisdictional grounds, under Rowen and Hatfield, which Pro Art makes no serious effort to distinguish in its Brief, there was not a bona fide termination on the merits in Pro Art s favor as required. Summary judgment was proper. 2. There was no Record Evidence That Greenberg Lacked Probable Cause To File The Underlying Lawsuit. Summary judgment on Pro Art s malicious prosecution claim was also proper because the undisputed record evidence establishes that Greenberg had sufficient probable cause to file the eviction case. The county court s judgment in favor of V-Strategic, affirmed by the circuit court sitting in its appellate capacity and by this Court on certiorari review, establishes probable cause as a matter of law, notwithstanding that the Florida Supreme Court later overturned the judgment on jurisdictional grounds. Under Florida law, a judgment is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury, or other corrupt means. 13

20 Goldstein v. Sabella, 88 So. 2d 910, 912 (Fla. 1956). 4 The reversal of the judgment does not destroy the validity and effect of the determination of the question of probable cause. Id. Only a reversal for fraud, perjury, or other corrupt[ion] undermines the conclusive evidence of probable cause. Id. Even then, a general allegation that a witness testified falsely in a judicial proceeding is not a sufficient allegation of fraud, perjury or other corrupt means to form a basis for a retrial of the issues involved in a previously tried judicial proceeding. Kern v. Modernage Furniture Corp., 125 So. 2d 893, 894 (Fla. 3d DCA 1961). The Florida Supreme Court s holding in Goldstein, 88 So. 2d 910, is on point. In that case, the plaintiff/tenant filed suit for malicious prosecution against the landlord who had obtained a judgment of eviction, later overturned on appeal. Affirming dismissal of the malicious prosecution claim, the Florida Supreme Court 4 See also Calbeck v. Town of South Pasadena, Florida, 128 So. 2d 138 (Fla. 2d DCA 1961) (holding judgment of conviction is conclusive evidence of probable cause of unlawful arrest, even though conviction was set aside on appeal); Behm v. Campbell, 925 So. 2d 1070 (Fla. 5th DCA 2006) (same), Carter v. City of St. Petersburg, 319 So. 2d 602 (Fla. 2d DCA 1975) (absent fraud, prejudice or any other corrupt means, convictions sufficiently established probable cause for arrests, though convictions were reversed on appeal), Fisher v. MAAS Brothers, Inc., 149 So. 2d 910 (Fla. 2d DCA 1963) (initial conviction raised a presumption of probable cause sufficient to preclude suit for malicious prosecution, though within one hour after signing docket sheet, the municipal judge dismissed the charge). 14

21 held the judgment in the eviction action constituted conclusive evidence of probable cause even though that judgment had been reversed: The effect of the allegation that the defendant had obtained a judgment of conviction against the plaintiff, in an action complained of, and the absence of the allegation of fraud, perjury or other corrupt means in the procuring of said judgment, is conclusive, on the face of the pleadings, that probable cause did exist for instituting the action. Id. at 912; (emphasis added); see also Gallucci v. Milavic, 100 So. 2d 375, 377 (Fla. 1958) (reaffirming rule in Goldstein). Here, as in Goldstein, the county court s judgment, affirmed by the circuit court and this Court, establishes conclusively that Greenberg had probable cause for filing the eviction case. This Court is not required to peer yet again into the merits of the county court judgment. Although an exception arises where a judgment is overturned due to fraud, perjury, or other corrupt means, here the judgment was vacated on jurisdictional grounds and Pro Art has no evidence sufficient to raise a genuine issue that the judgment was procured by fraud, perjury or corrupt means. To the contrary, there is not a scintilla of record evidence to suggest that Greenberg procured the judgment by means of fraud, perjury or corrupt means. In fact, Pro Art s corporate representative candidly testified that Pro Art had no any evidence of any sort of perjury, fraud or improper conduct by Greenberg in procuring the eviction judgment. (A-321, 323, ) 15

22 Given the complete absence of any record evidence of perjury, fraud or improper conduct, Pro Art failed to raise any genuine issue of material fact that Greenberg lacked probable cause. 5 Once again, the judgment was entered in favor of V-Strategic and affirmed by two appellate panels. Meanwhile, the Supreme Court expressly declined to reach the merits. 986 So. 2d at 1246 n.2, The county court s dismissal on jurisdictional grounds does not destroy the validity and effect of the determination of the question of probable cause. Goldstein, 88 So. 2d at 912. Unable to demonstrate a single act constituting fraud or perjury, Pro Art, instead, quotes at length from dicta in footnote 10 of the Court s plurality opinion. (Pro Art Brief at 29.). Pro Art contends that that no reasonable lawyer could have believed the lease termination agreement was enforceable and, thus, Greenberg s actions in filing suit were tantamount to fraud, perjury or corrupt means. (Id. at ) Pro Art does not cite to any Florida authority holding that an untenable claim, assuming this was one, equates to fraud, perjury or corrupt means on the part of counsel. To the contrary, Florida courts hold that an attorneys unique role 5 When the facts are undisputed in a malicious prosecution action, the existence or nonexistence of probable cause is a pure question of law for the court. Cent. Fla. Mach. Co., Inc. v. Williams, 424 So. 2d 201, 202 (Fla. 2d DCA 1983) (citing City of Pensacola v. Owens, 369 So. 2d 328 (Fla.1979)). 16

23 in litigation requires a particularly high bar be satisfied to make assert a malicious prosecution claim against counsel: It is the attorney s reasonable and honest belief that his client has a tenable claim that is the attorney s probable cause for representation, and not the attorney s conviction that his client must prevail. C.A. Hansen Corp. v. Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, P.A., 613 So.2d 1336, 1338 (Fla. 3d DCA 1993) (quoting Central Fla. Mach. Co., Inc. v. Williams, 424 So.2d 201, 203 (Fla. 2d DCA 1983). An attorney has the duty to represent the client zealously, not to insure that the client will succeed. C.A. Hansen Corp., 613 So.2d at Furthermore, so long as the attorney investigates the facts and law, and prosecutes a claim which a reasonable lawyer would regard as tenable, the plaintiff has no right to assert malicious prosecution against the attorney if the lawyer s efforts prove unsuccessful. Id. Endacott v. Int'l Hospitality, Inc., 910 So. 2d 915, (Fla. 3d DCA 2005) (internal quotations omitted). The Second District explained in Central Florida Machinery Co., Inc. v. Williams, 424 So. 2d at 203, that malicious prosecution actions against attorneys could conceivably prohibit attorneys from pursuing and establishing new causes of action and could hinder the development of new legal theories. An attorney must represent his client zealously within the bounds of the law and professional ethics, and [a]s an advocate he must accept the facts as he finds them and render his advise [sic] consistent with those facts and his knowledge of the law. Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So. 2d 412, 414 (Fla. 4th DCA 1980, cert. denied, 388 So. 2d 1119 (Fla. 1980). Attorneys are charged with a duty to make a 17

24 reasonable investigation in determining the facts before initiating a suit on a client's behalf. Id. If the attorney simply has a reasonable, honest belief that his client has a tenable claim, [the attorney] enjoys the same freedom of access to the court as does [the attorney's] client. Id. at 415. Requiring more would effectively stifle the peaceful resolution of disputes and deny the very justice the courts are intended to administer. Id. As such, an action for malicious prosecution against an attorney from the original lawsuit is considered a very serious matter that this Court has held it will not view lightly. See id. Worse yet, Pro Art glosses over the unavoidable fact that no court has ever concluded that the eviction case was, in fact, untenable. Footnote 10 of the plurality opinion does not constitute a precedential opinion. The plurality opinion was joined by only three Justices and thus does not constitute the opinion of the Court. See Art. V 3(a), Fla. Const.; see also Santos v. State, 629 So. 2d 838, 840 (Fla. 1994) (explaining that an opinion must be joined by four members of the Court to constitute a precedential opinion). And even the plurality was careful to note that, ultimately, the issue of the enforceability of the lease termination agreement was best addressed by the appropriate trial court that might consider this dispute. 986 So. 2d at 1246 n.2. Thus, the issue whether the underlying lease termination agreement was enforceable has never been resolved by any court. Pro Art s speculation as to the 18

25 ultimate viability of that argument falls far short of the fraud, perjury or corruption necessary to avoid the conclusive effect of the prior judgment. Absent evidence, which is lacking, of perjury or fraud the prior county court judgment (which, by the way, this court already once affirmed) is not subject to re-review in this proceeding. Again, Barnett provided a clear factual and legal basis for the eviction action. At the time that the suit was filed, as Barnett correctly testified, there was a default judgment in Miami-Dade Circuit Court. The effect of the default judgment in Miami-Dade County was to admit the allegations of the termination agreement between V-Strategic and Pro Art. The termination agreement was evidenced by correspondence between the parties counsel memorializing an offer and acceptance of terms whereby the lease was terminated. Based on this evidence, the eviction action was filed and three courts (county, circuit and this Court) adjudicated the matter in favor of Greenberg s client conclusively establishing that probable cause existed. 3. Absence of Malice Summary judgment was also warranted because Pro Art had no evidence, much less evidence to create a genuine issue of material fact, that Greenberg acted with malice towards Pro Art. Malicious for purposes of malicious prosecution means without reasonable cause and for a purpose other than that for which the 19

26 criminal prosecution is provided and, therefore, out of ill will, animosity and with a desire to do harm for harm s sake. Erp v. Carroll, 438 So. 2d 31, 40 n.13 (Fla. 5th DCA 1983). Again, when questioned directly about the factual basis for the allegation that Greenberg acted with malice, Pro Art s corporate representative could provide none. (A-317.) There was no pre-existing relationship between Greenberg and Pro Art, or any other factor, that would give rise to malice against Pro Art. The absence of any evidence to support the allegation of malice justified summary judgment. B. The Elements of An Abuse of Process Claim are Absent. The trial court properly granted summary judgment on the abuse of process claim because the record conclusively demonstrated that there was no evidence of the necessary elements for the tort. The record negated any factual issue whatsoever as to illegal, improper or perverted use of process for a purpose other than the intended one, or the existence of any ulterior motive for such perverted use, thus entitling Greenberg to judgment under binding authority from this court. See S & I Inv. v. Payless Flea Markets Inc., 36 So. 3d 909, 917 (Fla 4th DCA 2010) (affirming summary judgment against abuse of process claim where record showed process was used only for intended purpose); Della-Donna v. Nova University Inc., 512 So. 2d 1051, (Fla. 4th DCA 1987) (same). The fact 20

27 that a lawsuit initiated by process is alleged to have legal or factual defects is immaterial. Id. This Court s S&I Investments case is particularly instructive. In that case, the plaintiff/landlord filed an eviction action against its tenant. The tenant argued the eviction action was baseless and was filed to keep [the tenant] in litigation for ten years and make its life a living hell. 36 So. 3d at 916. Giving this argument short shrift, this Court held that even if some form of extortion was involved, the conduct fell outside the parameters of the tort of abuse of process. Id. at 917. This court explained that abuse of process fails as a claim if all the [defendant] did was file a complaint and have process served. Id. The maliciousness or lack of foundation for the cause of action itself is actually irrelevant to the tort of abuse of process, which is concerned with the perverted use of process after it is obtained. Id. at (quoting Cazares v. Church of Scientology, 444 So. 2d 442, 444 (Fla. 5th DCA 1983). Plainly, applying the above legal standards, the trial court s ruling here was proper and, indeed required. Pro Art produced no evidence whatsoever of the misuse of process once obtained. In Pro Art s Brief, it argues that the improper use and improper purpose elements were established because the process was issued by the wrong court and because the underlying lawsuit had an extortionate purpose. (Pro Art Brief at 36-21

28 37). These arguments fail under this Court s precedents. As quoted above, this Court has expressly held that neither defects in a complaint nor an extortionate purpose are sufficient for, and indeed are irrelevant to, an abuse of process claim. Again Pro Art s corporate representative admitted in binding testimony that there was no evidence of any improper use of process. (A-318.) Process in the eviction action was served on Pro Art to evict Pro Art. Because no evidence was presented to the trial court of any perversion of process after issuance, and because there is no evidence of any perverted motivations, S&I Inv., 36 So. at 917, summary judgment was proper. C. The Absolute Immunity For Acts Occurring in the Course of Litigation Prevents Assertion of Any Tort Claims. Assuming arguendo that Pro Art had produced evidence sufficient to create a genuine issues of fact on the elements of Pro Art s malicious prosecution and abuse of process claims, summary judgment was still appropriate based on Florida s litigation privilege which extends a privilege against claims premised upon conduct occurring in the course of judicial proceedings. First, as to Pro Art s abuse of process claim, the law is clear that the absolute immunity for acts occurring in the course of litigation, sometimes called litigation privilege bar Pro Art s pursuit of any abuse of process claim under American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Co., 748 So. 22

29 2d 1054 (Fla. 4th DCA 1999) (alleged claim for abuse of process by counsel barred by absolute immunity as an act occurring during the course of a judicial proceeding), Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606, 608 (Fla. 1994) (establishing absolute immunity from tort claims arising occurring during the course of a judicial proceeding) and Wolfe v. Foreman, 128 So. 3d 67, (Fla. 3d DCA 2013) (alleged abuse of process claim against counsel barred by absolute immunity when allegations related to use of process relating to legal proceeding). 6 The holdings of these cases are crystal clear, as is their applicability to the instant facts. The trial court was plainly correct in ruling as it did based on the current state of the law. Pro Art s abuse of process claim against Greenberg was entirely bottomed upon conduct by the law firm that occurred in obtaining and serving process in the course of the judicial proceeding, which is absolutely privileged. As to the malicious prosecution claim, while this Court has yet to expressly apply the litigation to absolutely bar malicious prosecution claims against attorneys, see, e.g., Am. Nat l Title & Escrow of Florida, Inc. v. Guarantee Title & 6 See also LatAm Invs., LLC v. Holland & Knight, LLP, 88 So. 3d 240 (Fla. 3d DCA 2011), rev. denied, 81 So. 3d 414 (Fla. 2012) (applying litigation privilege to bar abuse of process claim); EMI Sun Village, Inc. v. Catledge, Case No. 13-CV , 2013 WL (S.D. Fla. Sept. 27, 2013) (dismissing abuse of process and malicious prosecution claims and citing litigation privilege). 23

30 Trust Co., 810 So. 2d 996 (Fla. 4th DCA 2002), the Third District has so applied the privilege, see Wolfe, 128 So. 3d at 68-69, and there are strong precedents and justifications (well illustrated by the present case) for doing so. Doubtless many litigants harbor a desire to bring suit against their adversary s attorney. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989). Yet, years ago the Supreme Court extended absolute immunity for statements made in the course of judicial proceedings, so long as those statements were connected with, or relevant or material to, the cause in hand or subject of inquiry. Myers v. Hodges, 44 So. 357, 361 (Fla. 1907). Florida courts also recognized, early on, that [t]he action[s] of an attorney in a lawsuit frequently angers his client s opponent because the attorney by his energy often must advance his client s cause at the expense of his opponent... Pickard v. Maritime Holdings Corp., 161 So. 2d 239, 240 (Fla. 3d DCA 1964). The absolute litigation privilege was designed: [T]o permit a free adversarial atmosphere to flourish, which atmosphere is so essential to our system of justice. In fulfilling their obligations to their client and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. A contrary rule might very well deter counsel from saying or writing anything controversial for fear of antagonizing someone involved 24

31 in the case and thus courting a lawsuit, a result which would seriously hamper the cause of justice... Sussman v. Damian, 355 So. 2d 809, 811 (Fla. 3d DCA 1977). The privilege was later extended beyond the defamation context. See Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla. 1992) (plaintiff not permitted to make an end run around the privilege, by simply styling defamation claim as one for intentional infliction of emotional distress); Anderson v. Rossman & Baumberger, P.A., 440 So. 2d 591 (Fla. 4th DCA 1983) (same); Regal Marble, Inc. v. Drexel Invs., Inc., 568 So. 2d 1281, 1283 (Fla. 4th DCA 1990) ( fraud claim seeking redress for use of an intentionally false survey and perjury was a thinly veiled attempt to avoid the absolute privilege for actions taken in judicial proceedings, and was barred). The Supreme Court expressly extended the litigation privilege to all acts occurring during judicial proceedings and to torts other than defamation in Levin, 639 So. 2d at There, the court held 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, and 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. Id. at 608 (emphasis omitted). 25

32 The Court recognized that a privilege could bar some claims for legitimate injuries but deemed it necessary to free participants in judicial proceedings from the chilling effect of subsequent civil liability for actions taken in judicial proceedings: Id. [T]he rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a civil lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct. In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007), which the Third District relied on extensively in Wolfe, the Supreme Court held that the litigation privilege applies in all causes of action, statutory as well as common law. Id. at There, defaulting mortgagors filed a class action suit against their lenders counsel for alleged violation of consumer laws in collecting debts. The defendant law firm urged that litigation privilege barred the action. It appealed a class certification order, claiming that the trial court tried to vitiate its defense with a narrow class definition. Id. at 382. The First District rejected this argument, finding that the litigation privilege was inapplicable to statutory causes of action. Id. at

33 The Florida Supreme Court granted review, and quashed the First District s decision. Id. at 384. It held that Levin previously extended the litigation privilege to all torts, which holding was, notably, without qualification as to the nature of the judicial proceedings, whether based on common law, statutory authority or otherwise. Id. at The policy reason for adopting immunity focuses on the judicial nature of the proceedings, not the nature of the underlying dispute, which simply does not matter. Id. at 384. As the Third District reasoned in Wolfe, to apply a litigation privilege to protect attorneys against tort claims arising out of conduct in court is not to say that such conduct is beyond judicial scrutiny. First, attorneys are officers of the Court and may not assert positions unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. R. Regulating Fla. Bar Courts have inherent authority to sanction attorney misconduct to protect the courts from acts obstructing the administration of justice. Levin, 639 So. 2d at 609, cited in Moakley v. Smallwood, 826 So. 2d 221, 224 (Fla. 2002). Attorneys are further subject to a court s extensive authority to sanction frivolous conduct, including under Florida Statute , which permits a court to assess fees against counsel under circumstances where an attorney prosecutes a claim that the attorney knew or should have known was not supported by law or facts. Also, to the extent 27

34 misconduct occurs prior to the filing of the complaint or is unrelated to the judicial proceeding, Wolfe, 128 So. 3d at 71, the privilege would not apply. Thus attorneys are uniquely subject to multiple checks to ensure their conduct before a tribunal comports with the rules and the administration of justice. Severe sanctions can result from in-court misconduct by lawyers without resort to the tort of malicious prosecution. This case presents an apropos example. After the county court dismissed for lack of jurisdiction, Pro Art actually sought sanctions against Greenberg. That motion was denied, however, based on the county court s ruling the court with the most intimate knowledge of Greenberg s actions that there was no showing that Greenberg knew or should have known that the eviction action was without merit based upon the facts or the law in existence at the time the lawsuit was filed. (A-184.) The county court further noted that there has been no adjudication on the merits and that the dismissal on jurisdictional grounds case does not constitute a termination in Pro Art s favor. (Id.) Pro Art could have, but did not, seek review of these rulings. Accordingly, it is not as though the conduct of Greenberg has escaped judicial scrutiny. The law firm s actions were brought to the attention of the court before which the firm appeared and that court, given its familiarity with the proceedings, concluded sanctions were not warranted. Potentially subjecting the 28

35 firm to further tort liability in another judicial proceeding merely gives rise to needless satellite litigation while not providing any significant additional protection to the public against attorney misconduct since such alleged misconduct was ably addressed by the court before which the firm appeared. Unable to avoid the established Florida law extending the litigation privilege to bar claims against an opposing party's counsel, Pro Art resorts to cases decided in other jurisdictions excepting malicious prosecution claims from the litigation privilege. 7 These cases have no precedential effect. In Florida, the Supreme Court has twice held that the privilege applies across the board to all causes of action without exception. Levin, 639 So. 2d at ; Echevarria, 950 So. 2d at 380. Wolfe found this precedent unavoidable. The privilege should be applied here to bar the malicious prosecution claim against Greenberg. 7 See Silberg v. Anderson, 786 P.2d 365 (Cal. 1990); Rioux v. Barry, 927 A.2d 304 (Conn. 2007); Simpson Strong-Tie Co. Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 27 (Tenn. 2007); Rainier s Dairies v. Raritan Val. Farms, 117 A.2d 889, 895 (N.J. 1955); see also Clark v. Druckman, 624 S.E.2d 864 (W. Va. 2005) (exception for malicious prosecution and fraud). Silberg applied the privilege to bar abuse of process, but not malicious prosecution claims. Silberg, 786 P.2d at (and cases collected). 29

36 D. The Trial Court Properly Granted Summary Judgment as to the Conspiracy Count. Because the underlying tort claims were properly disposed of by way of summary judgment, the trial court did not err in granting summary judgment in favor of Greenberg on Pro Art s conspiracy claim. A claim of conspiracy does not constitute an independent tort and may be alleged only to connect a defendant to an otherwise actionable tort. Liappas v. Augoustis, 47 So. 2d 582 (Fla. 1950); Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025, 1029 (Fla. 3rd DCA 1981), rev. denied, 412 So. 2d 463 (Fla. 1982). An actionable conspiracy therefore requires an actionable underlying tort or wrong. Ovadia v. Bloom, 756 So. 2d 137 (Fla. 3d DCA 2000); United Technologies Corp. v. Mazer, 556 F.3d 1260, 1281 (11th Cir. 2009) ( Under Florida law, a civil conspiracy must have as its object the commission of an underlying tort. ). The underlying torts of malicious prosecution and abuse of process are not actionable and therefore Pro Art cannot proceed on its claim for conspiracy to commit those torts. In addition, and assuming arguendo a viable underlying tort claim were established, Pro Art failed to present a shred of evidence of a conspiracy to commit the alleged tort and summary judgment was appropriate on this ground also. 30