CASE NO. 4D PRO-ART DENTAL LAB, INC. Appellant, vs. Appellees.

Transcription

1 E-Copy Received Jul 7, :45 PM IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D PRO-ART DENTAL LAB, INC., Appellant, vs. GREENBERG TRAURIG, LC AND CRAIG S. BARNETT, Appellees. On Appeal from the Seventeenth Judicial Circuit Court in and for Broward County, Florida L.T. Case No.: CACE (08) INITIAL BRIEF OF APPELLANT PRO-ART DENTAL LAB, INC. Th B.C.S. CIAJP LAW GROUP, LC 17Oi Biscayne Blvd., Suite 510 Aventura, Florida Telephone: (305) Facsmile: (305) Counselfor Appellant 1

2 TABLE OF CONTENTS PAGE NO. TABLE OF AUTHORITIES ui-vu PREFACE 1 STATEMENT OF THE CASE 2 STATEMENT OF THE FACTS 5 STANDARD OF REVIEW 12 SUMMARY OF ARGUMENT ARGUMENT 16 I. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED 16 IL THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE THE LITIGATION PRIVILEGE DOES NOT SHIELD GT AND BARNETT FROM LIABILITY FOR PRO-ART S MALICIOUS PROSECUTION AND ABUSE OF PROCESS CLAIMS BECAUSE OF GT AN]) BARNETT S IMPROPER AND FRAUDULENT CONDUCT 17 ifi. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THERE WAS AN ABSENCE OF PROBABLE CAUSE ON THE PART OF GT AND BARNETT AND WHETHER THERE HAS 1

3 BEEN A BONA FIDE TERMINATION IN PRO-ART S FAVOR THE TWO CONTESTED ELEMENTS OF THE MALICIOUS PROSECUTION CLAIM 25 1V. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUIVD IARY JUDGMENT REGARDING PRO- ART S ABUSE OF PROCESS CLAIM BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER GT AN]) BARNETT HAD AN ULTERIOR PURPOSE IN ThEIR ISSUANCE OF SUI1MARY PROCEDURE PROCESS AGAINST PRO-ART, AN ELEMENT OF THE ABUSE OF PROCESS CLAIM 36 V. BECAUSE THE UNDERLYING CLAIMS OF MALICIOUS PROSECUTION AND ABUSE OF PROCESS ARE NOT SUBJECT TO SUMMARY JUT)GMENT, THE CONSPIRACY CLAIM SHOULD REMAIN UNAFFECTED 38 CONCLUSION 38 CERTIFICATE OF SERVICE 39 CERTIFICATE OF COMPLIANCE 39 11

4 TABLE OF AUTHORITIES Cases Page No. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994) 31 Am. Nat l Title & Escrow off/a., Inc. v. Guarantee Title & Trust Co, 810 So.2d 996, 998 (Fla. 4th DCA 2002) 24 Am. Nat l Title & Escrow off/a., Inc. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4th DCA 1999) rev, denied, 757 So.2d 453 (Fla. 2000) 24, 25 Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 34 (Utah 2003) Boca Investors Group v. Potash, 835 So.2d 273 (Fla. 3d DCA Boca Investors Group v. Potash, 835 So.2d 273, 275 (Fla. 3rd DCA 2002) 22 Burton v. Salzberg, 725 So. 2d 450 (Fla. 3d DCA 1999) 19 Caivertv. Simon, 311 So. 2d 13, 17 (La. Ct. App. 1975) 21 Carnes v. Fender, 936 So.2d 11, 14 (Fla. 4th DCA 2006) 14 Cent. Ice Mach. C o. v. Cole, 509 N.W.2d 229, 232 (Neb. Ct. App. 1993) 20 City ofpensacola i. Owens, 369 So.2d 328, 329 (Fla. 1979) 36 Ciarkv. Druckman, 218 W. Va. 427, 435, 624 S.E.2d 864 (2005) 29 Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013) 19 Doss v. Bank ofamerica, N.A., 857 So.2d 991, 5-6 (Fla. 5th DCA 2003)39 Echevarria, Mccalla, Raymer, Barrett & Frappier, etc., et al., v. Cole, 950 So.2d 380 (Fla. 2007) 18 Endacott v. International Hospitality, Inc., 910 So.2d 915, 920 (Fla. 2005) 31 Endacott v. International Hospitality, Inc., 910 So.2d 915, 922 (Fla. 2005) 36 Endacott, 910 So. 2d at Frosty. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009) 13 Hanson Corp. v. Wicker, Smith, 613 So. 2d 1336, 1338 (Fla. 3d DCA 1993) 36 Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965) 14 Herzfeid & Rubin v. Robinson, 502 U.S. 1091, 112 S. Ct. 1160, 117 L. Ed. 2d

5 (1992).27 Kramer v. Midamco, Inc., United States District Court, Docket No. 1:07 CV 3164 (N.D. Ohio October 19, 2009) 27 LatAm Invs., LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011) 23 Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. US. Fire Ins. Co., 639 So.2d606(Fla. 1994) 18,22 Loews, Inc. v. Don George, Inc., 110 So. 2d 553 (La. 1959) 21 Matsuura v. E. I. du Pont de Nemours & Co., 102 Haw. 149, 160, 162, 73 P.3d 687 (2003) 28 McGee v. HyattLegal Services, Inc., 813 P.2d 754, 757 (Cob. App. 1990) 28 North Star JapitalAcquisitions, LLC v. Krig, 611 F.Supp.2d 1324, 1330 (M.D. Fla. 2009) 18 Pettitt v. Levy, 104 Cal. Rptr. 650, 652 (Ct. App. 1972) 20 Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, (Fla. 2008) 9, 32, 34 Pro-A rt Dental Lab, Inc. v. V-Strategic Grottp, LLC, 986 So.2d 1244, 1250 (Fla. 2008) 10 Pro-Art Dental Lab, Inc., 986 So.2d at ,23 Pro-Art Dental Lab, Inc., 986 So.2dat 1259, fin ,35,43 Quernerv. Rindfiiss, 966 S.W.2d 661, 666 (Tex. App. 1998, pet. denied) 29 Robinson v. VolkswagenwerkAG, 940 F.2d 1369, (10th Cir. 1991) 27 Rowen v. Holiday Pines Property Owners Assn., Inc., 759 So.2d 13 (Fla. 4th DCA 2000) 41 Rushing v. Bosse, 652 So.2d 869 (Fla. 4th DCA 1995) 19 SCI Funeral Services offla., Inc. v. Henry, 839 So.2d 702, 706 n. 4 (Fla. 3rd DCA 2002) 22 Simms v. Seaman, 283 Conn. 494, 510, 927. A.2d 894, (2007) 29 iv

6 Sullivan, 379 So. 2d at Taylor v. McNichols, 149 Idaho 826, 840, 243 P.3d 642 (2010) 28 Thompson v. Paul, 657 F. Sup. 2d 1113, 1122 (D. Ariz. 2009) 28 Union Oil of California v. Watson, 468 So.2d 349, 353 (Fla. 3d DCA 1985) 39 Valdes v. GAB Robins North America, Inc., 924 So.2d 862 (Fla. 3d DCA 2006) Van Horn v. McNabb, 715 So.2d 380 (Fla. 4th DCA 1998) 19 Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000) Webster Lumber Co. v. Lincoln, 94 Fla. 1097, 115 So. 498 (Fla.1927) 6 Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 506 (Fla. 1982) 14 Williams, 424 So. 2d at Wofe v. Foreman, 128 So. 3d 67 (Fla. 3 DCA 2013) 21, 26 Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984) 21, 22 Statutes (1), Fla. Stat. (2006) , , , Fla. Stat. (2006) 8 Ark. Code Ann (1999) 22 Cal. Civ. Code 47 (Deering 2005) 22 chapter 66, Florida Statutes (2006) 8 md. Code Ann (LexisNexis 2012); 22 Iowa Code Ann (West 1996) 22 Legal Services Corporation Act, 42 U.S.C. 2996e(f) (2001) 18 Minn. Stat. Ann (West 2002) 22 Mont. Code Ann (2011) 22 N.C. Gen. Stat. Ann (West 2011) 22 N.D. Cent. Code (2006) 23 N.Y. Jud. Law 487 (McKinney 2005) 22 Okla. Stat. Ann. tit. 21, 575 (West 2002) 23 V

7 S.D. Codified Laws (2004). 23 section (2)(f), Florida Statutes (2006) 8 section5l section , Florida Statutes (2006) 8 Wyo. Stat. Ann (2011) 23 Other Authorities Jett Hanna, Moonlighting Law Professors: Identing and Minimizing the Professional Liability Risk, 42 S. TEX. L. REV. 421, 446 (2001) 18 Mallen & Roberts, supra note 1, at 399 n Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 YALE L.J (1979) 18 Ronald E. Mallen & James A. Roberts, The Liability of a Litigation Attorney to a Party Opponent, 14 WILLAMETTE L.J. 387, 398 (1978) 18 See Hayden, supra note 1, at Rules Fla. R. Civ. P. l.130(a)-(b) 8 Fla. R. Civ. P (b) 10 Fla. R. Civ. P (c) 12 Rules Regulating the Florida Bar: Rules (Meritorious Claims and Contentions); 4-3.3(a) (Candor Toward the Tribunal); 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration ofjustice) 11, 22 Treatises Restatement (Second) of Contracts (1981) 6 Restatement (Second) of Torts, 674 comment on clause (b) 33 W. PAGE KEETON ET. AL., PROS SER AND KEETON ON THE LAW OF vi

8 TORTS 114, at (5th ed. 1984). 18 vii

9 Transcript Appendix, PREFACE Plaintiff Appellant, Pro-Art Dental Lab, Inc. will be referred to, throughout this brief, as Pro-Art or Appellant. Defendants Appellees, Greenberg Traurig, LC and Craig S. Barnett, will be referred to collectively as Appellees or individually as GT or Barnett. The other defendants in this case that are not the subject of this appeal, V-Strategic Group, LLC, Juan Carlos Ventura and Jose Ventura, will be referred to as V-Strategic. Juan Carlos and Jose, respectively. Throughout this Brief, the following symbols will be used: Record, followed by page number; (A. J followed by page number; and ) of summary judgment hearing before the Honorable Dale Ross, Judge of the 17th Judicial Circuit, in and for Broward County, Florida, on April 01, 2013, followed by page number. This should be and is an important case both to the bench, the bar and the public because it goes to the very fabric and integrity of our system ofjustice and the The filing of an Appendix herein was necessitated by the failure of the appellate clerk to include the March 26, 2012 deposition of Ivonne Barroso within the Official Record on Appeal. This deposition was filed by Pro-Art on March 27, 2013 as part of Pro-Art s summary judgment evidence in opposition to the Second Summary Judgment Motion (R. 1640). 1

10 confidence and trust that we place in the officers of court that are given the privilege of being licensed to practice law but concomitantly charged with the ethical responsibility of not abusing legal procedure. In this case, GT and Barnett abused legal procedure and committed a fraud upon the Court resulting in the unjustified eviction of Pro-Art from its offices and the ultimate destruction of its business notwithstanding the fact that it had a valid lease, with over a five (5) year term remaining, that it was current on all of its obligations under the lease and that the action it filed was filed before the wrong court and was premised upon the wrong procedural rule. STATEMENT OF THE CASE This action commenced with the filing of Pro-Art s Complaint on September 2, 2008 (R. 1-38). On October 15, 2008, V-Strategic filed its Motion to Dismiss or in the Alternative Abate (R ). On October 23, 2008, Pro-Art filed its Motion for Summary Judgment on Liability (R ). On November 6, 2008, V-Strategic filed its Answer, Affirmative Defenses and Counterclaim (R ). On November 21, 2008, Pro-Art filed its Answer and Motion to Dismiss Counterclaim (R ). On December 9, 2008, V-Strategic filed its Response to Pro-Art s Motion for Summary Judgment, containing as an exhibit thereto an Affidavit of Juan Carlos (R ). 2

11 On March 4, 2009, Pro-Art moved to amend its complaint (R )2 which motion was granted on April 20, 2009 (R ). On May 22, 2009, Pro-Art filed its First Amended Complaint (R ). On June 8, 2009, V-Strategic, Juan Carlos and Jose filed their Motion to Dismiss the First Amended Complaint (R ) and GT and Barnett also filed their Motion to Dismiss (R ). On August 10, 2009, Pro-Art filed its Combined Response to the Motions to Dismiss the First Amended Complaint (R ). On August 20, 2009, the Court issued its Order on the Motions to Dismiss the First Amended Complaint dismissing the First Amended Complaint as to Greenberg, Barnett, Juan Carlos and Jose (R. 472). On September 9, 2009, Pro-Art filed its Second Amended Complaint (R ). On September 21, 2009, GT and Barnett filed their Motion to Dismiss the Second Amended Complaint (R ). On October 8, 2009, V-Strategic Juan Carlos and Jose filed their Motion to Dismiss the Second Amended Complaint (R ). On December 7, 2009, Pro-Art filed its Combined Response to the Motions to Dismiss the Second Amended Complaint (R ). On January 26, 2010, V-Strategic filed a Suggestion of Bankruptcy (R. 710). ). On March 31, 2010, the Court issued its Order on GT and Bamett s and Juan Carlos and Jose s Motions to Dismiss the Second Amended Complaint dismissing the claims against Juan 2 The Motion to Amend also sought to add Pro-Art s owner, president and only employee, Marina DelToro, as a party plaintiff. 3

12 Carlos and Jose and dismissing all of the claims of Marina Del Toro (R ). On April 19, 2010, GT and Bamett filed their Answer and Affirmative Defenses to the Second Amended Complaint (R ). On November 17, 2010, Greenberg and Barnett filed their Motion for Judgment on the Pleadings or for Summary Judgment ( First Summary Judgment Motion ) (R ) along with an Appendix (R ). On February 7, 2011, afler the dismissal of V Strategic s bankruptcy filing, Pro-Art moved for default against V-Strategic for failure to answer (R ). On March 2, 2011, V-Strategic filed its Answer and Affirmative Defenses (R ). On March 30, 2010, the Court issued its Order denying GT and Bamett s Motion for Judgment on the Pleadings or for Summary Judgment (R. 1092). On December 19, 2012, GT and Bamett filed a second Motion for Summary Judgment ( Second Summary Judgment Motion ) (R ) along with an Appendix (R ). On March 27, 2013, Pro-Art filed its Response and Opposition to GT and Bamett s Motion for Summary Judgment (R ) along with its summary judgment evidence in opposition to the Second Summary Judgment Motion (R ; ). On July 5, 2013, the Court entered its Order granting GT and Barnett s Second Summary Judgment Motion (R. 2134). On December 9, 2014, Pro-Art and V-Strategic filed a Stipulation for Entry of Final Judgment (R ) and that same date the Court entered the 4

13 Stipulated Final Judgment (R ). On January 3, 2014, Pro-Art filed its Notice of Appeal herein (R ). On February 4, 2014, Pro-Art filed its Motion to Relinquish Jurisdiction before this Court for the purpose of having the lower court amend the stipulated Final Judgment to include the final dismissal of GT and Barnett. On February 13, 2013, GT and Bamett filed their Response. On February 17, 2014, this Court issued its Order on Pro-Art s Motion to Relinquish Jurisdiction, relinquishing jurisdiction so that Pro-Art could secure a proper Amended Final Judgment and filed an amended notice of appeal. On March 12, 2014, the lower court issued its Agreed Amended Final Judgment. On March 27, 2014, Pro-Art filed its Amended Notice of Appeal herein. On April 9, 2014, this Court issued its Order permitting this appeal to proceed. STATEMENT OF THE FACTS V-Strategic is the assignee of that certain Lease Agreement, dated March 20, 2000, by and between V-Strategic Group s predecessor-in-interest, 1651 North Collins Corporation, as Landlord, and Pro-Art Dental Lab, as Tenant, for the leased premises consisting of approximately 750 square feet located as 2101 East Hallandale Beach Boulevard, Suite 302, Hallandale, Florida (the Lease Agreement ). (R. 8). The Lease Agreement s term originally was to expire on March 31, 2006, but had been extended for additional term of five (5) years, until 5

14 2011. (A. 132). Pro-Art s lease had just been renewed for an additional five year term and Pro-Art had every intention of staying out the entire five year term. (R ; 1874; 1449). Pro-Art was current on its rent and was otherwise in full compliance with all of the lease terms. (R ). The Florida Supreme Court summarized the facts leading up to the filing of the ejectment action as follows: V-Strategic purchased the Hallandale property for redevelopment purposes and appears to have been intent on attempting to vacate any existing tenants. On July 22, 2005, V Strategic s counsel faxed Pro-Art s counsel an offer for early termination of the lease. In response, Pro-Art s counsel sent a letter dated August 25, 2005, which V-Strategic has characterized as a counter-offer, but which may more properly be characterized as preliminary negotiation. See generally Webster Lumber Co. v. Lincoln, 94 Fla. 1097, 115 So. 498 (Fla.1927); Restatement (Second) of Contracts (1981).2 The letter of August 25, which was not signed by any officer of Pro-Art, included the following items: 1) Pro-Art would remain an occupying tenant and would continue paying rent until February 2006 or until Pro-Art secured an alternative rental property, whichever occurred sooner. 2) Pro-Art would agree to an early termination of its lease (which, as extended, would not expire until 2011). 3) V-Strategic would pay Pro-Art $95,000 as consideration for the early termination to be deposited in the trust account of Pro-Art s counsel until Pro-Art vacated the premises. 4) V-Strategic and Pro-Art would each execute general releases of the other with regard to the Hallandale lease. [986 So.2d 1247] 6

15 This letter from counsel concluded by stating that [i]f this agreement is acceptable, please let [counsel] know and we can drafl the appropriate agreement. Otherwise, my client [Pro-Art] intends to remain as a tenant until 2011 [.] (Emphasis supplied.) In a letter dated October 13, 2005, Juan Carlos Ventura, managing member of V-Strategic, addressed Pro-Art s president directly and claimed to confirm the prior understanding of counsel that V-Strategic would accept Pro-Art s counter-offer: We [V-Strategic] have been advised by our attorney, Mr. Santiago Eljaiek III, that you [Marina Del Toro, President and Registered Agent of Pro-Art,] have provided a counter-offer to our initial offer that would terminate your Lease as of February 28, 2006[,] in exchange for $95, As Mr. Eljaiek has already advised [counsel for Pro-Art], we are in agreement with and accept your counter-offer. Accordingly, this letter shall confirm our understanding that we shall be paying the $95, as you direct immediately upon your vacating of the Premises. Again, we thank you and appreciate your understanding and cooperation with our proposed development of our Project. (Emphasis supplied.) V-Strategic contends that Pro-Art s alleged counter-offer letter and V-Strategic s alleged acceptance letter constituted a completed termination agreement. The record does not contain the appropriate agreement or releases referenced in the alleged counter-offer, there is no indication that the parties ever drafied these documents, and V-Strategic s alleged acceptance of the purported counter-offer altered a term of performance (i.e., the method of payment concerning the $95,000 lease-termination consideration).3 Further, neither the underlying lease agreement nor Pro-Art s written notice of extension appears to have been produced during this litigation. Pro-Art continues to contest the existence of a valid termination agreement.4 As a result of these events, V-Strategic assumed the position that Pro-Art was required to terminate its occupancy as of February 2006 at the latest. However, Pro-Art continued to occupy the Hallandale property and asserted that V-Strategic had not tendered the required consideration (i.e., the $95,000) and that no properly executed termination agreement existed. On April 3, 2006, V-Strategic filed a single-count complaint in Broward County Court specifically seeking 7

16 relief styled ejectment, a judgment of possession and damages,5 and an award of costs and [986 So.2d 1248] attorneys fees. V-Strategic did not attach any type of agreement signed by an appropriate representative of Pro-Art; instead, all that was attached was a letter from Pro-Art s former counsel and a letter from the managing member of V-Strategic. Cf. Fla. R. Civ. P (a)-(b); , , , Fla. Stat. (2006). V-Strategic attempted to proceed under the summary procedure provided in section , Florida Statutes (2006). On April 4, 2006, V-Strategic caused Pro-Art to be served with a five-day eviction summons, which also expressly stated that V-Strategic sought ejectment. (Emphasis supplied.) If section applied to ejectment actions (which it does not), Pro-Art would have had until April 11, 2006,6 to file an answer containing all [of its] defenses of law or fact. See (1), Fla. Stat. (2006). On April 7, 2006, Pro-Art filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction and Motion to Quash Service of Process, but did not file an answer or assert any affirmative defenses. In its motion to dismiss, Pro-Art correctly contended that (1) the county court lacked subject-matter jurisdiction because section (2)(f), Florida Statutes (2006), vests circuit courts, not county courts, with exclusive original jurisdiction to entertain ejectment actions and (2) the mode of procedure was improper because section s summary procedure does not apply to ejectment actions under chapter 66, Florida Statutes (2006). Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, (Fla. 2008). Pro-Art never reached a definitive agreement to terminate the lease with V Strategic, nor did Pro-Art ever receive any money from V-Strategic for termination of its lease. (R. 1423; 1427; ). No lease termination agreement was ever executed by Marina DelToro, Pro-Art s principal and V-Strategic. (R ; ). The alleged $95, termination agreement that allegedly 8

17 resulted from the exchange of lawyer s letters was neither legally nor factually accurate. (R ; ; ). In any event the parties continued to negotiate afier the $95, alleged termination agreement and V Strategic s corporate representative acknowledged that that alleged agreement had been superseded by other supposed agreements. (R. 1723; ). Notwithstanding the foregoing, Bamett and GT prepared both a Complaint and an for their client s approval and execution that claimed that the $95, alleged termination agreement was the operative and binding termination agreement. (R ; 1740; ). The default and the default final judgment in the Miami Dade County Circuit Court case was improperly entered and had been vacated before any hearing was held in the ejectment action. (A ); (R ). That default judgment was vacated on April 25, (R ). On that same day, GT received a faxed copy of the order vacating the Miami- Dade default judgment, which fax cover sheet recites: Per our conversation Order Setting Aside Default and Default Final Judgment in V-Strategic Group LLC vs. Pro- Art Dental Lab Inc., Case No.: CA (23). (A ); (R ; ). The allegation in the ejectment action complaint that V-Strategic s right to possession of the premises had already been determined by another Court was therefore inaccurate and untrue as of the day before the initial county court hearing. (R ; ; ). 9

18 The ejectment action was not properly filed in the county court because that action could only have been brought in circuit court. Pro-Art Dental Lab, Inc. v. Strategic Group, LLC, 986 So.2d 1244, 1250 (Fla. 2008). The summary procedure statute was not available to be used with a circuit court ejectment action. Pro-Art Dental Lab, Inc., 986 So.2d at Moreover, the allegations of V-Strategic s complaint taken as true should not have led to the issuance of a writ of possession and the ouster of Pro-Art from the Hallandale property. The correspondence V Strategic attached to its complaint became a part of that pleading for all purposes, see Fla. R. Civ. P (b); however, that same correspondence does not appear to constitute a valid lease-termination agreement. Pro-Art Dental Lab, Inc., 986 So.2d at 1259, fin. 10. Notwithstanding all of the above, on or about May 1, 2006, Barnett and GT drafted and submitted a Final Judgment for Possession to the county court judge for her execution. (R. 1694); (A. 40). Barnett and GT either knew and were aware of all of the foregoing or they should have been aware of same had they reasonably investigated the facts and law. (R ). Neither Barnett nor his associate Barroso could or were willing to detail what research they did on the validity of the alleged termination agreement prior to filing the Ejectment Complaint or submitting the proposed Final Judgment for Possession. (R. 1690; ); (A. 27, 29). Neither Bamett and GT informed any Court of the foregoing nor did they 10

19 ever confess error. (A. 38); (R ; ). Contrary to Appellees assertions in their Motion for Summary Judgment, Pro-Art s corporate representative specifically testified that GT and Barnett lied to the Court. (R ). As a consequence of all of the above, Barnett and GT prosecuted a claim which no reasonable lawyer would regard as tenable and also acted unreasonably by neglecting to investigate the facts and law in making their determination to proceed with the prosecution of their ejectment action. (R. 1643). Additionally, Barnett and GT s submission of the Final Judgment for the County Court s execution as well as their client s affidavit was improper and a fraud on the Court because such conduct violated following Rules Regulating the Florida Bar: Rules (Meritorious Claims and Contentions); 4-3.3(a) (Candor Toward the Tribunal); 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-8.4(d) (A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration ofjustice). (R. 1643). Finally, at the time of the dismissal, V-STRATEGIC could have sought to amend its complaint to fall within the jurisdiction of the County Court, could have sought to amend its complaint and seek a transfer of the action to Circuit Court or could have continued the action by way of a separate proceeding to resolve the 11

20 issue on the merits of their contention. Instead, V-STRATEGIC abandoned its prosecution of the claim such that, when the totality of circumstances surrounding the withdrawal or abandonment of the three (3) separate actions brought by V STRATEGIC against Pro-Art are examined, a jury could have determined that there was a bona fide termination of the actions in Pro-Art s favor. (R. 1643). STANDARD OF REVIEW The standard of review of an order granting summary judgment is de novo. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009). To be entitled to summary judgment of foreclosure, a plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment. Id. Under the Florida Rules of Civil Procedure, summary judgment is appropriate when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P (c); Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000); Carnes v. Fender, 936 So.2d 11, 14 (Fla. 4th DCA 2006) (citing Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 506 (Fla. 1982)). The Florida Supreme Court, in Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965), explained the burdens of the movant and the opposing party at the summary judgment stage: 12

21 A movant for a summary judgment has the burden of demonstrating that there is no genuine issue on any material fact. All doubts regarding the existence of an issue are resolved against the movant, and the evidence presented at the hearing plus favorable inferences reasonably justified thereby are liberally construed in favor of the opponent. A summary judgment motion will be defeated if the evidence by affidavit or otherwise demonstrates the existence of a material factual issue....to fulfill his burden [the movant] must offer sufficient admissible evidence to support his claim of the non existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. 175 So.2d at (internal citations omitted). SUMMARY OF ARGUMENT The Trial Court committed error in entering summary judgment in favor of GT and Bamett because they failed to meet their burden of showing the non existence of material facts at issue herein. GT and Bamett s motion for summary judgment on Pro-Art s malicious prosecution and abuse of process claims was premised first upon the argument that Florida s litigation privilege shielded them from their misconduct. Both malicious prosecutions and abuse of process claims have withstood the defense of Florida s litigation privilege. Nevertheless, that privilege is not applicable here because Appellees fraudulent actions were by definition unrelated to the judicial proceeding of an ejectment action. GT and Barnett s second contention was that their misbegotten ejectrnent 13

22 to action they referred to as an eviction case was filed with probable cause; and that, in any event, there was no evidence that GT and Barnett engaged in fraud or improper conduct. Because Pro-Art s summary judgment evidence demonstrated that GT and Barnett abused legal procedure and by so doing committed fraud on the Court and because the action filed by GT and Barnett lacked probable cause, the Trial Court s entry of Summary Judgment in favor of GT and Bamett as to the malicious prosecution count of Plaintiff s Second Amended Complaint was erroneous. GT and Bamett s motion for summary judgment on Pro-Art s abuse of process claim was based on their argument that process was utilized for no purpose other than for which it was obtained evict Pro-Art. Because the summary judgment evidence demonstrates that OT and Bamett abused legal procedure by utilizing process applicable to a county court eviction action when they filed an ejectment action, for which exclusive jurisdiction was vested in the circuit court and because they sought to use the process to attempt to leverage and pressure Pro-Art into a settlement agreement whereby Pro-Art would agree to vacate the premises and surrender its lease at a time and on a basis not achievable through the commencement and prosecution of the action, the Trial Court s entry of Summary Judgment in favor of GT and Bamett as to the abuse of process count of Plaintiff s Second Amended Complaint was erroneous. Finally, because the underlying claims of malicious prosecution and abuse of 14

23 process are not subject to summary judgment Pro-Art s conspiracy claim should remain unaffected. 15

24 ARGUMENT I. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED. At the time the trial court granted summary judgment for GT and Bamett, genuine issues of material fact existed rendering the entry of such summary judgment erroneous. The factual conflicts in the evidence concerned: (1) whether Barnett and GT lied to the Court as asserted and testified to by Pro-Art; (2) whether GT and Barnett prosecuted a claim which no reasonable lawyer would regard as tenable; (3) whether GT and Bamett also acted unreasonably by neglecting to investigate the facts and law in making their determination to proceed with the prosecution of their ejectment action;(4) whether GT and Barnett s submission of the Final Judgment for the County Court s execution was improper and a fraud on the Court; (5) whether GT and Bamett s preparation and filing of Juan Carlos s Affidavit was improper and a fraud on the Court and (6) whether when the totality of circumstances surrounding the withdrawal or abandonment of the three (3) separate actions brought by V STRATEGIC against Pro-Art are examined, the only conclusion that can be reached is that there was a bona fide termination of the actions in Pro-Art s favor? These factual conflicts alone should have mandated the denial of Appellees Motion for Summary Judgment. 16

25 IL THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE THE LITIGATION PRIVILEGE DOES NOT SHIELD GT AND BARNETT FROM LIABILITY FOR PRO-ART S MALICIOUS PROSECUTION AND ABUSE OF PROCESS CLAIMS BECAUSE OF GT AND BARNETT S IMPROPER AND FRAUTULENT CONDUCT. While it is clear that the litigation privilege applies in Florida to both claims arising under statute and common law, Echevarria, Mccalla, Raymer, Barrett & Frappier, etc., et al., v. Cole, 950 So.2d 380 (Fla. 2007); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, F.A. v. US. Fire Ins. Co., 639 So.2d 606 (Fla. 1994), the Florida Supreme Court has withheld judgment on both when and under exactly which circumstances the privilege applies. See North Star Capital Acquisitions, LLC v. Krig, 611 F.Supp.2d 1324, 1330 (M.D. Fla. 2009) (citing Echevarria, 950 So.2d at 384). In Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), a case quashing this Court s decision concluding that absolute immunity applied to attorney s statements, the Florida Supreme Court discussed Florida s absolute privilege. Although the case just deals with the narrow scenario of statements an attorney makes during ex-parte, outof-court questioning of a potential non-party witness in the course of investigating a pending lawsuit, it does signal that that the absolute privilege was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney. Id. at Appellees have cited to a myriad of cases in which the litigation privilege was 17

26 applied to shield a party from liability. 3 Notably absent from the string of citations is any case in which the privilege was applied to a malicious prosecution claim 4. Relevant precedent suggests that the malicious prosecution cause of action has survived the expansion of the litigation privilege through Echeverria and Levin. Appellees cited to Boca Investors Group v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002) (tortious interference with a business relationship); Burton v. Salzberg, 725 So. 2d 450 (Fla. 3d DCA 1999) (applying the privilege to any act necessarily preliminary to judicial proceedings ); Van Horn v. McNabb, 715 So.2d 380 (Fla. 4th DCA 1998) (civil conspiracy and tortious conduct claims for interference in parental custody and visitation rights); Rushing v. Bosse, 652 So.2d 869 (Fla. 4th DCA 1995) (civil conspiracy count). States are divided as to whether the doctrine of absolute immunity extends to claims for malicious prosecution. See Ronald E. Mallen & James A. Roberts, The Liability of a Litigation Attorney to a Party Opponent, 14 WILLAMETTE L.J. 387, 398 (1978); Jett Hanna, Moonlighting Law Professors: Identi5 ing and Minimizing the Professional Liability Risk, 42 S. TEX. L. REV. 421, 446 (2001); Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 YALE L.J (1979); see also W. PAGE KEETON ET. AL., PROSSER AND KEETON ON THE LAW OF TORTS 114, at (5th ed. 1984); cf Legal Services Corporation Act, 42 U.S.C. 2996e(f) (2001) (denying legal service lawyers immunity from abuse of process and malicious prosecution claims). In California, for instance, a party may sue opposing counsel for malicious prosecution, but the requirement of a favorable termination avoids conflicts of interest during the pendency of the underlying action. See Mallen & Roberts, supra note 1, at 399 n.54 (citing Pettitt v. Levy, 104 Cal. Rptr. 650, 652 (Ct. App. 1972)); see also Cent. Ice Mach. Co. v. Cole, 509 N.W.2d 229, 232 (Neb. Ct. App. 1993). Louisiana, one of the few states where attorneys receive only the benefit of qualified immunity during litigation, also eliminates the conflict of interest situation by requiring adversaries to delay the filing of claims against opposing counsel until the underlying lawsuit has ended. See Hayden, supra note 1, at 1051 (citing Loew s, Inc. v. Don George, Inc., 110 So. 2d 553 (La. 1959) and Calvert v. Simon, 311 So. 2d 13, 17 (La. Ct. App. 1975)). 18

27 Indeed, in a case decided shortly after summary judgment was entered herein, the Third District concluded that the litigation privilege also applies to a malicious prosecution action, without effectively eliminating it as a cause of action altogether. Wojfe v. Foreman, 128 So. 3d 67 (Ha. 3 DCA 2013). In Wrightv. Yurko,446 So2d 1162 (Ha. 5thDCA 1984), the court appliedthe litigation privilege to bar an action for defamation and conspiracy to commit defamation and peijuiy. The Wright court expressly stated that a remedy still available to the plaintiff there was the ancient cause of action of malicious prosecution. Id. at In Levin, the Florida Supreme Court held that that the litigation privilege applied to bar an action for tortious interference with a business relationship. The Levin court cited Wright with approval, leading later courts to conclude that malicious prosecution remains a viable cause of action notwithstanding the expansion of the litigation privilege. See SCI Funeral Services offla, Inc. v. Heniy, 839 So.2d 702, 706 a 4 (FIa. 3rd DCA 2002) ( As the Levin court cited Wright v. Yurko, 446 So.2d 1162 (Na. 5th DCA 1984), with approval, presumably the cause of action for malicious prosecution continues to exist and would not be barred by the litigation privilege. ); Boat Investors Group v. Potash, 835 So.2d 273, 275 (Ha. 3rd DCA 2002) (Cope 3., concurring) ( since the Levin decision cites with approval Wright v. Yurko, 446 So.2d 1162 (Na. 5th DCA 1984), it is evident that the tort of malicious prosecution is available in a proper case. ). 19

28 LatAm Invs., LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011), cited by Appellees in their Motion for Summary Judgment (R. ) deals with the assertion of the litigation privilege by the defendant to dismiss an abuse of process claim. There the Third District concluded that the application of the litigation privilege to a cause of action for abuse of process did not eliminate that cause of action. The basis for reaching that decision was that a claimant may still pursue a claim for abuse of process when the claim is based on actions taken outside a judicial proceeding or on actions taken during a judicial proceeding but which are unrelated to the judicial proceeding LatAm Invs., LLC at 243. Thus, if this Court were to follow the logic and holding of LatAm Invs., LLC, in order to reverse the trial court s entry of summary judgment, this Court would have to conclude that the use of a five (5) day eviction summons in an ejectment action was unrelated to that judicial proceeding. In fact, there is neither a relation to nor applicability of a five (5) day summons to an ejectment action. Pro-Art Dental Lab, Inc. at 1253 (...Pro-Art faced a procedural mechanism which is foreign to ejectment actions (section , Florida Statutes (2006)...). By definition, a procedural mechanism foreign to ejectment actions cannot possibly be related to the [ejectment] judicial proceeding. To the extent that Appellees rely on Am. Nat 1 Title & Escrow offla., Inc. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4th DCA 1999) rev. denied, 757 So.2d 453 (Fla. 2000), neither GT nor Bamett bothers to point out that the decision in 20

29 favor of the defendant law firm in that case was affirmed because the misconduct alleged against the finn was done pursuant to court orders and was therefore protected by the absolute immunity afforded conduct related to judicial proceedings. Am. Nat 1 Title & Escrow off/a., Inc. v. Guarantee Title & Trust Co, 810 So.2d 996, 998 (Fla. 4th DCA 2002) (emphasis added). Notably, after the plaintiffs in that case amended their complaint to include different parties and different theories of liability (but still including counts of malicious prosecution and abuse of process), this Court reversed the trial court s decision that an absolute litigation privilege applied because the actions which formed the basis of the new amended complaint were not done pursuant to court orders. Id. The actions upon which Pro-Art predicates its malicious prosecution and abuse of process claims herein were in no way performed pursuant to court order so as to avail the Appellees of the privilege that was applied in American National Title. The conduct of GT and Bamett in preparing and submitting the Default Final Judgment for Possession on the Ejectment Complaint, preparing and submitting the Affidavit of Juan Ventura, continuing to prosecute the action and defend the Judgment against Pro-Art s appeals is nothing short of false, fraudulent and ethically improper as violating Rules Regulating the Florida Bar: Rules (Meritorious Claims and Contentions); 4-3.3(a) (Candor Toward the Tribunal); 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4-21

30 8.4(d) (A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). To the extent that Appellee argues that the litigation privilege trumps Pro- Art s malicious prosecution claim arising from GT and Barnett s drafting of the ejectment complaint, prosecution of that action to final judgment and submission of the Final Judgment they drafted, Pro-Art is not unmindful of the Third District s opinion in Woife, supra. The Wofe holding appears to gut Pro-Art s malicious prosecution claim. The facts in Woife however can be distinguished from the facts herein due to the nature of the attorney s conduct. However, even if Wof s holding would be applicable to the instant matter, Pro-Art contends that such holding is wrong and does not further the important policy issues at stake. In discussing these issues in a dissent, Justice Palmer of the Connecticut Supreme Court succinctly framed the issue as follows: It bears emphasis that blanket immunity for attorneys who commit fraud during the course of judicial proceedings raises serious policy concerns not implicated by other tortious conduct, including defamation. Such fraud not only victimizes the affected litigant, it also strikes at the heart of the judicial process. In recognition of the seriousness of attorney fraud, at least one dozen states have enacted statutes expressly renouncing any privilege for conduct during the course of a judicial proceeding when, as is alleged in the present case, an attorney engages in fraudulent misconduct in the course of that proceeding. See Ark. Code Ann (1999); Cal. Civ. Code 47 (Deering 2005); md. Code Ann (LexisNexis 2012); Iowa Code Ann (West 1996); Minn. Stat. Ann (West 2002); Mont. Code Ann (2011); N.Y. Jud. Law 487 (McKinney 2005); N.C. Gen. Stat. Ann (West 2011); 22

31 N.D. Cent. Code (2006); Okia. Stat. Ann. tit. 21, 575 (West 2002); S.D. Codified Laws (2004); Wyo. Stat. Ann (201 1). In addition to these statutory provisions, courts in other jurisdictions expressly have rejected the view that attorneys should be granted absolute immunity for fraud committed in a judicial proceeding. See, e.g., Robinson v. Volkswagenwerk AG, 940 F.2d 1369, (10th Cir. 1991) ( [The] [p]laintiffs. seek to hold.. [the defendant law firm] liable based [on] allegedly fraudulent statements in the course of discovery and at trial, but we cannot identify a common law precedent for absolute immunity on such claims. The claims asserted are not for defamation and [the defendant] cannot avail itself of the immunity afforded government lawyers responsible for vindicating the public interest.. [The defendant] is.. not entitled to absolute immunity for the discovery and litigation statements contained in the plaintiffs. complaint. ), cert. denied.. sub nom. Herzfeld & Rubin v. Robinson, 502 U.S. 1091, Ct. 1160, 117 L. Ed. 2d 408 (1992); Kramer v. Midamco, Inc., United States District Court, Docket No. 1:07 CV 3164 (N.D. Ohio October 19, 2009) ( [The defendant attorneys] argue that they are immune from the fraud claim because a litigation privilege protects individuals from civil liability for any false or malicious statements made in judicial proceedings. [H]owever, that privilege has been... specifically assigned to protect against civil claims for defamation.extended to include libel and intentional infliction of emotional distress claims. The Ohio Supreme Court has stated that the... privilege is limited, and does not create an exemption from all claims; and, it has not extended this privilege to. fraud claims.. It is not.... a barrier to the claims alleged in this action. [Citations... omitted.]); Thompson v. Paul, 657 F. Sup. 2d 1113, 1122 (D. Ariz. 2009) (under Arizona law, fraud claims premised on alleged defamation by opposing counsel are barred [by the litigation privilege]; fraud claims arising outside of the defamation context are not necessarily barred ); McGee v. Hyatt Legal Services, Inc., 813 P.2d 754, 757 (Cob. App. 1990) ( [a]n attorney, while performing his obligations to his client, is liable to third parties [for conduct undertaken during a judicial proceeding] only when his conduct is fraudulent or malicious ), cert. denied, Colorado Supreme Court, Docket No. 90SC753 (Cob. July 29, 1991); Matsuura v. E. I. du Pont de Nemours & Co., 102 Haw. 149, 160, 162, 73 P.3d 687 (2003) ( [c]riminal contempt, attorney discipline, and criminal prosecution 23

32 deter the type of litigation misconduct alleged in [this] case but none of these remedies compensate[s] the victims of such misconduct, and, therefore, [u]nder Hawaii law, a party is not immune from liability for civil damages based [on] that party s fraud engaged in during prior litigation proceedings ); Taylor v. McNichols, 149 Idaho 826, 840, 243 P.3d 642 (2010) ( Application of the litigation privilege varies across jurisdictions, but the common thread found throughout is the idea that an attorney acting within the law, in a legitimate effort to zealously advance the interests of his client, shall be protected from civil claims arising [out of] that zealous representation. An attorney engaging in malicious prosecution, which is necessarily pursued in bad faith, is not acting in a manner reasonably calculated to advance his client s interests, and an attorney engaging in fraud is likewise acting in a manner foreign to his duties as an attorney. ); Querner v. Rindfuss, 966 S.W.2d 661, 666 (Tex. App. 1998, pet. denied) ( If an attorney acting for his client participates in fraudulent activities, his action is foreign to the duties of an attorney.... An attorney, therefore, is liable if he knowingly commits a fraudulent act or knowingly enters into a conspiracy to defraud a third person.... Even in the litigation context, a lawyer cannot shield himself from liability on the ground that he was an agent because no one is justified on that ground in knowingly committing a [wilful] and premeditated fraud for another. [Citations omitted; internal quotation marks omitted.]); Clark v. Druckman, 218 W. Va. 427, 435, 624 S.E.2d 864 (2005) ( [T]he litigation privilege generally operates to preclude actions for civil damages arising from an attorney s conduct in the litigation process. However, the litigation privilege does not apply to claims of malicious prosecution and fraud. ). Indeed, significantly more courts have declined to afford absolute immunity to attorneys against claims of fraud than have afforded attorneys such protection. 11 In fact, the majority cites but one such case, Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 34 (Utah 2003), in which the court held that a claim of deceit, which is materially similar to a claim of fraud, is barred by the litigation privilege. 12 Thus, when the various state statutes that except attorney fraud from coverage under the litigation privilege are considered, it is apparent that the vast majority of states that have addressed the issue have declined to extend the privilege to such fraud.13 24

33 Simms v. Seaman, 283 Conn. 494, 510, 927. A.2d 894, (2007). Pro-Art suggests that it would indeed be a mistake to extend the litigation privilege to encompass fraud on the Court and prays that this Court will decline to adopt the Wofe holding in favor of an approach more in line with the majority ofjurisdictions who have encountered and decided this issue. Accordingly, GT and Bamett s attempt to obtain absolution from and hide their wrongful conduct behind the absolute litigation privilege is misplaced. Fortunately, such privilege does not sweep so broadly as to sanction such fraudulent conduct, and this Court would send the wrong message to Florida lawyers and the public at large if it allowed such privilege to shield Bamett and GT from answering for the damages to Pro-Art inflicted by their wrongful conduct. III. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THERE WAS AN ABSENCE OF PROBABLE CAUSE ON THE PART OF GT AND BARNETT AND WHETHER THERE HAS BEEN A BONA FIDE TERMINATION IN PRO-ART S FAVOR THE TWO CONTESTED ELEMENTS OF THE MALICIOUS PROSECUTION CLAIM. In order 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; 25

34 and (6) damages conforming to legal standards resulting to the plaintiff. Endacott v. International Hospitality, Inc., 910 So.2d 915, 920 (Fla. 2005) (citing Alamo Rent-A- Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994). In their Motion for Summary Judgment, GT and Bamett contended that elements (3) and (4) have not and cannot be established, entitling them to summary judgment. See Defendant s Motion for Summary Judgment p. 15. (R ). As explained further below, genuine issues of material fact existed rendering the Trial Court s entry of Summary Final Judgment in favor of GT and Bamett erroneous. A. Lack ofprobable cause. The Ejectment action filed in the County Court for Broward County constituted the basis for Pro-Art s malicious prosecution and abuse of process claims. That Ejectment action was allegedly based upon a default judgment that was entered against Pro-Art in Miami-Dade Circuit Court for the breach of a valid lease termination agreement. Pro-Art has consistently claimed that the allegation of a valid lease termination agreement in the Ejectment action was utterly and completely false, that Bamett and GT knew it was false, and that GT and Bamett pursued a claim that no reasonable lawyer would regard as tenable. SAC 41, 51. (R. 484, 487). Pro-Art supported such allegations with summary judgment evidence in opposition (R ), creating issues of material fact which should have precluded summary judgment in GT and Bamett s favor. 26