IN THE SUPREME COURT OF FLORIDA. Supreme Court Case No. SC BOCA INVESTORS GROUP, INC., Petitioner, IRWIN POTASH, ET AL., Respondents.

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1 IN THE SUPREME COURT OF FLORIDA Supreme Court Case No. SC BOCA INVESTORS GROUP, INC., Petitioner, v. IRWIN POTASH, ET AL., Respondents. On Discretionary Conflict Review of a Decision of the Third District Court of Appeal JURISDICTIONAL BRIEF OF PETITIONER BOCA INVESTORS GROUP, INC. GERALD F. RICHMAN BRUCE ROGOW GARY S. BETENSKY BEVERLY A. POHL MICHAEL J. NAPOLEONE BRUCE ROGOW, P.A. RICHMAN GREER WEIL BRUMBAUGH Broward Financial Centre MIRABITO & CHRISTENSEN, P.A. 500 E. Broward Blvd., Ste Attorneys for Petitioner Fort Lauderdale, Florida Australian Avenue, South Telephone: (954) One Clearlake Centre, Suite 1504 Facsimile: (954) West Palm Beach, FL Telephone: (561)

2 Facsimile: (561)

3 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 2 ARGUMENT 3 A. LEVIN MIDDLEBROOKS DOES NOT IMMUNIZE THE ACT OF FILING A LAWSUIT.3 B. THE THIRD DISTRICT S CONFLICT WITH AND MISAPPLICATION OF LEVIN, MIDDLEBROOKS PRESENTS AN ISSUE OF GREAT PUBLIC IMPORTANCE.6 CONCLUSION... 8 CERTIFICATE OF SERVICE 9 CERTIFICATE OF COMPLIANCE 9 APPENDIX October 16, 2002 Decision of the Third District Court of Appeal 1-6 January 29, 2003 Order of the Third District Court of Appeal 7-8 Denying Certification and Rehearing i

4 TABLE OF AUTHORITIES Cases Page No. American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Co., So. 2d 1054 (Fla. 4 th DCA 1999), rev. denied, 767 So. 2d (Fla. 2000)7 Boca Investors Group, Inc. v. Potash,... So. 2d, 2002 WL (Fla. 3d DCA October 16, 2002)1 Fridovich v. Fridovich, So. 2d 65 (Fla. 1992)4 Levin, Middlebrooks, et al. v. U.S. Fire Ins. Co., So.2d 606 (Fla.1994)1, 2, 3, 4, 5, 6, 7 Sailboat Key, Inc. v. Gardner, So. 2d 47 (Fla. 3d DCA 1979)5 Wright v. Yurko, So. 2d 1162 (Fla. 5 th DCA 1984)2, 4, 5 OTHER AUTHORITY Fla. Const. art. V, 3(b)3... 2, 3 ii

5 STATEMENT OF THE CASE AND FACTS Petitioner, Boca Investors Group, Inc., seeks discretionary review of a decision of the Third District Court of Appeal, which affirmed a judgment on the pleadings based on Florida s absolute litigation privilege. The facts set forth by the District Court are as follows: Boca Investors filed its tortious interference with a business relationship suit to recover damages suffered as a result of defendants filing three lawsuits that disrupted Boca Investors efforts to purchase Fisher Island property. Defendants moved for judgment on the pleadings based on absolute litigation privilege. The trial court granted the motion based on Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994). Boca Investors Group, Inc. v. Potash, So. 2d, 2002 WL (Fla. 3d DCA October 16, 2002). (Appendix, p. 2) The court found that the Defendants / Respondents acts of filing three lawsuits that disrupted Boca Investors efforts to purchase Fisher Island property were entitled to absolute immunity because, as in Levin, all of the acts alleged in support of the tortious interference claim bear a relationship to the proceedings instituted by defendants. Id. (Appendix, p. 2) On November 15, 2002, Petitioner filed a motion for certification and rehearing, which the Third District denied. (Appendix, p. 7) Petitioner thereafter filed a notice to invoke this Court s discretionary jurisdiction under Art. V, 3(b)3 of the Florida Constitution because the District Court s decision misapplied, and therefore expressly 1

6 and directly conflicts with, Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994). SUMMARY OF THE ARGUMENT In Levin, Middlebrooks, supra, this Court held that the act of filing a lawsuit is not immunized by the absolute litigation privilege. That the act of filing is not so immunized is evident by Levin, Middlebrooks citation to Wright v. Yurko, 446 So. 2d 1162 (Fla. 5 th DCA 1984), which expressly permitted a malicious prosecution action based upon the wrongful filing of a lawsuit. If Levin, Middlebrooks immunized the act of filing, it would not have cited Wright with approval, since a necessary element of a malicious prosecution action is the commencement of a judicial proceeding through the act of filing a lawsuit. Wright, 446 So. 2d at The decision below misapplied, and therefore expressly conflicts with, Levin, Middlebrooks because the Third District held that the act of filing a lawsuit is immunized by the absolute litigation privilege. (Appendix, p. 2-3) Under the Third District s application of Levin, Middlebrooks, any and all causes of action for which the filing of a lawsuit could serve as an element have been abolished, which would include malicious prosecution. Accordingly, Petitioner seeks to invoke the Court s discretionary jurisdiction under Article V, 3(b)3 of the Florida Constitution because of the conflict with Levin, Middlebrooks. 2

7 ARGUMENT A. LEVIN, MIDDLEBROOKS DOES NOT IMMUNIZE THE ACT OF FILING A LAWSUIT In Levin, Middlebrooks, this Court reaffirmed the absolute immunity that extends to all acts taken during the course of a judicial proceeding. Levin, Middlebrooks arose from the disqualification of the Levin Middlebrooks law firm as a result of the defendant s certification to the trial court during a pending bad faith lawsuit that a lawyer from the Levin Middlebrooks firm would be called as a witness at trial. Id. at 607. As a direct result of the identification of counsel as a witness, the trial court disqualified Levin Middlebrooks from continued representation of the plaintiff in the bad faith action. Id. Having neither been subpoenaed nor called as a witness at trial, Levin Middlebrooks thereafter sued the bad faith defendant in federal court for tortious interference with the law firm s relationship with its client. That action was dismissed on the grounds that the defendant s actions in the bad faith lawsuit were protected by the absolute immunity afforded to statements or actions taken during a judicial proceeding. Id. On appeal, the United States Court of Appeals for the Eleventh Circuit certified the following question: Id. Whether certifying to a trial court an intent to call opposing counsel as a witness at trial in order to obtain counsel s disqualification, and later failing to subpoena and call counsel as a witness at trial, is an action that is absolutely immune from a claim of tortious interference with a business relationship by virtue of Florida s litigation privilege. 3

8 In reviewing the certified question, this Court articulated the public policy underlying the origins of the privilege: This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings.... In determining that the public interest of disclosure outweighs an individual s right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Id. at 608 (citing Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992)). This Court noted that although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided. Id. (quoting Wright v. Yurko, 446 So. 2d 1162 (Fla. 5 th DCA 1984)). Again acknowledging the genesis of the privilege, the Court stated that injurious falsehood... is subject to all the privileges recognized both in cases of personal defamation and other types of interference with economic advantage. Id. (quoting Sailboat Key, Inc. v. Gardner, 378 So. 2d 47, 49 (Fla. 3d DCA 1979)(false statements in a complaint are absolutely privileged and cannot form basis of slander of title action)). This Court then answered the certified question in the affirmative and expanded the privilege provided for defamatory statements to encompass other tortious conduct occurring during the course of litigation. Id. at 608 (emphasis added). 4

9 In its analysis, this Court cited to Wright v. Yurko, 446 So. 2d 1162 (Fla. 5 th DCA 1984), which expressly permitted a malicious prosecution lawsuit to proceed based upon the filing of baseless litigation. As stated in Wright, and pursuant to Florida law, the commencement of a judicial proceeding is a necessary and required element of an action for malicious prosecution. Wright, 446 So. 2d at Had Levin, Middlebrooks intended to immunize the act of filing a lawsuit, Wright would not have been cited with approval. The citation to Wright in Levin, Middlebrooks manifests this Court s intention not to cloak the filing of a lawsuit with immunity as a privileged act occurring during the course of a judicial proceeding. Levin, Middlebrooks, 639 So.2d at 608. Levin, Middlebrooks did not hold or imply that the absolute immunity for statements or actions occurring during a judicial proceeding extends to the act of filing the complaint that wrongfully initiated the proceeding. In express and direct conflict with Levin, Middlebrooks, the Third District in the decision below held that the wrongful filing of a lawsuit was protected by the absolute litigation privilege, and that such an act could not serve as the actionable wrong that gives rise to a cause of action for tortious interference. (Appendix, p. 2-3) Because Levin, Middlebrooks teaches that the act of wrongfully commencing litigation is not protected by the privilege, the decision below conflicts with Levin, Middlebrooks by immunizing the malicious and bad faith filing of a complaint. 5

10 B. THE THIRD DISTRICT S CONFLICT WITH AND MISAPPLICATION OF LEVIN, MIDDLEBROOKS PRESENTS AN ISSUE OF GREAT PUBLIC IMPORTANCE The misapplication of Levin, Middlebrooks by the Third District abolishes causes of action for malicious prosecution, tortious interference, and violation of Florida s anti-trust laws under Chapter 542, Florida Statutes, to the extent that any of those causes of action are premised upon the filing of bad faith, malicious or sham litigation. Because Florida courts have allowed claims for malicious prosecution to proceed since the Levin, Middlebrooks decision, it is clear that malicious prosecution has not been abolished, and that one who maliciously institutes a lawsuit is not protected by the absolute litigation privilege. Likewise, any other cause of action based upon the wrongful and malicious filing of a lawsuit that results in damages is not protected by the absolute litigation privilege. Thus, contrary to the decision below, claims for tortious interference or violation of Florida s anti-trust laws under Chapter 542, Florida Statutes that include as the operative wrong the bad faith, malicious or sham commencement of litigation, are not barred by the absolute litigation privilege. Allowing the Third District s misapplication of Levin, Middlebrooks to go uncorrected will result in the elimination of causes of action not protected by the privilege and will prevent injured parties from seeking redress. 1 Accordingly, this 1 The Fourth District Court of Appeal has construed Levin, Middlebrooks to eliminate a cause of action for common law abuse of process, where the misuse of process was held to be within the scope of the absolute litigation immunity for acts occurring during the course of judicial proceeding. See American National Title & Escrow of Florida, 6

11 Court should exercise its discretionary jurisdiction, review the decision of the Third District Court of Appeal, and articulate whether the scope of the absolute litigation privilege includes the act of filing a complaint. Inc. v. Guarantee Title & Trust Co., 748 So. 2d 1054 (Fla. 4 th DCA 1999), rev. denied, 767 So. 2d 453 (Fla. 2000) 7

12 CONCLUSION For the foregoing reasons, this Court should exercise its conflict jurisdiction and grant review of the decision below. Respectfully Submitted, RICHMAN GREER WEIL BRUMBAUGH MIRABITO & CHRISTENSEN, P.A. Attorneys for Petitioner 250 Australian Avenue, South One Clearlake Centre, Suite 1504 West Palm Beach, FL Telephone: (561) Facsimile: (561) By: GERALD F. RICHMAN Florida Bar No GARY S. BETENSKY Florida Bar No MICHAEL J. NAPOLEONE Florida Bar No and BRUCE ROGOW Florida Bar No BEVERLY A. POHL Florida Bar No BRUCE ROGOW, P.A. Broward Financial Centre, Suite East Broward Blvd. Fort Lauderdale, Florida Telephone: (954) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Petitioner s Brief on 8

13 Jurisdiction was delivered via U.S. Mail this day of March, 2003 to the parties on the attached service list. By: GERALD F. RICHMAN CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that, pursuant to Fla. R. App. P (a)(2), this brief has been printed in Times New Roman 14-point proportionate type. By: GERALD F. RICHMAN I:\Litig\ \Appeal - Judgment on the Pleadings\Pleadings\Brief on Jurisdiction - UPDATE.doc 1

14 APPENDIX Page No. October 16, 2002 Decision of the Third District Court of Appeal 1-6 January 29, 2003 Order of the Third District Court of Appeal 7-8 Denying Certification and Rehearing 1