IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LOWER TRIBUNAL CASE NO.: 3D BOCA INVESTORS GROUP, INC. Petitioner, vs. IRWIN POTASH et al.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LOWER TRIBUNAL CASE NO.: 3D BOCA INVESTORS GROUP, INC. Petitioner, vs. IRWIN POTASH et al., Respondents. On Discretionary Conflict Review of a Decision of the Third District Court of Appeal RESPONDENTS JURISDICTIONAL BRIEF LAWRENCE S. GORDON, ESQ. JEFFREY D. FELDMAN, ESQ. FELDMAN GALE AND WEBER, P.A. MIAMI CENTER 19 th FLOOR 201 SOUTH BISCAYNE BLVD. MIAMI, FLORIDA Tel: Fax: Counsel for Respondents

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 THE DECISION BELOW DOES NOT IN ANY WAY CONFLICT WITH LEVIN, MIDDLEBROOKS AND RAISES NO ISSUES OF GREAT PUBLIC IMPORTANCE. CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE

4 TABLE OF AUTHORITIES Boca Investors Group, Inc. v. Potash, 835 So. 2d 273 (Fla. 3d DCA 2002)... 1,2,4,5 Dept. of Health and Rehab. Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 1 Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) Procacci v. Zacco, 402 So. 2d 425 (Fla. 4 th DCA 1981)... 3 Reaves v State, 485 So. 2d 829 (Fla. 1986)... 1 Rushing v. Bosse, 652 So. 2d 869 (Fla. 4 th DCA 1995) Sailboat Key, Inc. v. Gardner, 378 So. 2d 47 (Fla. 3d DCA 1979)... 3,4 Wright v. Yurko, 446 So. 2d 1162 (Fla. 5 th DCA 1984)... 2,3,5,6 OTHER AUTHORITIES Second Restatement of Torts, section

5 SUMMARY OF THE ARGUMENT Petitioner Boca Investor s Group, Inc. ( Boca ) attempts to create conflict by positing two mistaken premises. First, it wrongly states that in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), this Court held that the act of filing a lawsuit is not immunized by the absolute litigation privilege. Petitioner s Brief at 2 (emphasis in original). Second, Boca wrongly asserts that the decision it asks this Court to review -- Boca Investors Group, Inc. v. Potash, 835 So. 2d 273 (Fla. 3d DCA 2002) -- abolishes claims of malicious prosecution. Because neither of Boca s propositions is correct, there is no express and direct conflict between Levin and the decision below, 1 and therefore no jurisdiction in this Court. 1 The conflict between decisions must be express and direct, i.e., conflict must appear within the four corners of the majority decision. Reaves v State, 485 So. 2d 829, 830 (Fla. 1986). In other words, inherent or so called implied conflict may no longer serve as a basis for this Court s jurisdiction. Dept. of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986). As explained below, Boca attempts to assert an implied conflict, based upon a conclusion that cannot even be inferred from the decision below. 1

6 ARGUMENT THE DECISION BELOW DOES NOT IN ANY WAY CONFLICT WITH LEVIN, MIDDLEBROOKS AND RAISES NO ISSUES OF GREAT PUBLIC IMPORTANCE. Attempting to create conflict jurisdiction where there is none, Petitioner Boca misstates this Court s holding in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), as well as the Third District s holding in the decision below in Boca Investors Group, Inc. v. Potash, 835 So. 2d 273 (Fla. 3d DCA 2002). Boca asserts, In Levin, Middlebrooks, supra, this Court held that the act of filing a lawsuit is not immunized by the absolute litigation privilege. Petitioner s Brief at 2 (emphasis in original). This is not the holding of Levin at all. Instead, the holding of Levin is: absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement, or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. Levin, 639 So. 2d at 608 (as quoted in the decision below, 835 So. 2d at 274). In reaching the holding in Levin, this Court relied upon several decisions that hold that the filing of a complaint comes within the protection of absolute immunity. See, e.g., Wright v. Yurko, 446 So. 2d 1162 (Fla. 5 th DCA 1984) 2

7 (absolute immunity bars claims based upon the malicious filing of a complaint); Sailboat Key, Inc. v. Gardner, 378 So. 2d 47 (Fla. 3d DCA 1979) (absolute immunity bars claims based upon filing of a complaint); Procacci v. Zacco, 402 So. 2d 425, (Fla. 4 th DCA 1981) (lis pendens is notice of all facts apparent on the face of the pleadings and... [is] as much entitled to the benefit of the privilege, within the contemplation of libel laws, as are the pleadings in the action to which the notice relates. ). In Levin, this Court extensively relied upon Wright v. Yurko in which the Fifth District applied the absolute litigation immunity doctrine to affirm the dismissal of a claim for conspiracy that alleged that the defendant intentionally and maliciously filed a frivolous claim to injure the plaintiff. 446 So. 2d. at The district court reiterated that the policy reason for absolute immunity is the common law s decision to protect a litigant s access to the courts to file his claim, even if allegedly filed with malice to injure the defendant: The reason for the rule is that although it may bar recovery for bona fide injuries [resulting from a malicious filing], the chilling effect on free testimony and access to the courts if such suits were allowed would severely hamper our adversary system. Id. at Directly contrary to Boca s reading of Wright v. Yurko, the Fifth District clearly agreed that all claims based upon the filing of 3

8 a lawsuit, other than properly brought claims for malicious prosecution, are barred by the absolute immunity doctrine. Likewise, in Sailboat Key, Inc. v. Gardner, 378 So. 2d 47 (Fla. 3d DCA 1979), cited with approval in Levin, the Third District affirmed a summary judgment upon the application of absolute immunity to a claim based upon the alleged injurious prior filing of a complaint. The Court cited the rule of law as articulated in the Second Restatement of Torts, section 587 and recognized by every court that has considered the issue: A party to a private litigation... is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course of and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. Thus, Boca s assertion that this Court in Levin held that the filing of a complaint is not protected by absolute immunity is preposterous. There is plainly no conflict since the Third District in this case properly applied Levin and the cases upon which it relied (as well as its progeny) to conclude that litigation immunity applies to the filing of a complaint. Boca also attempts to conjure up an argument that the Third District s opinion in Boca would extinguish claims of malicious prosecution. 4

9 2 That conclusion cannot be found in or inferred from the opinion at all. 3 Indeed, Boca s very argument was addressed by the Court in Wright v. Yurko, which, while dismissing claims of civil conspiracy just as the Third District did here, held that [t]he only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution. 446 So. 2d at 1165 (citing Prosser, supra at 8, 119). Thus, contrary to Boca s urging, the decision below does not at all change the availability of the common law claim of malicious prosecution, notwithstanding the absolute immunity, with its own special elements and defenses, and the requirement that the prior proceeding has ended in favor of the plaintiff. 446 So. 2d at In a case that followed and relied upon Levin, the Fourth District in Rushing v. Bosse, 652 So. 2d 869 (Fla. 4 th DCA 1995), similarly held that all 2 Boca did not bring a cause of action for malicious prosecution. 3 In fact, while the Boca opinion does not in any way support Boca s fictitious assertion that claims for malicious prosecution are extinguished by the absolute immunity doctrine, the assertion was squarely rejected by Judge Cope s concurrence in which he adds: it is evident that the tort of malicious prosecution is available in a proper case. 835 So. 2d at 275. If there were even a suggestion in the opinion that malicious prosecution were extinguished, Judge Cope s concurrence would be a dissent. Certainly, the opinion does not either expressly or impliedly extinguish malicious prosecution. There is no conflict, even implied, and thus, no jurisdiction in this Court. 5

10 claims other than malicious prosecution were properly dismissed under absolute immunity. In Rushing, the court affirmed the dismissal of a claim for civil conspiracy relating to the wrongful filing of a fallacious petition for adoption in order to maliciously remove (essentially kidnap) a two-year-old child from Florida and from the custody of her grandparents, who had raised her from birth. The plaintiff alleged specifically that the defendants initiated the proceeding, knowing it as baseless and wrongfully continued the adoption proceeding with knowledge of the harm that would be caused to the child. Nevertheless, relying on both Levin and Wright v. Yurko, the Court affirmed the dismissal of all claims other than malicious prosecution, which is entirely consistent with the Third District s decision below. Accordingly, Boca s suggestion the Third District s decision below would extinguish the claim of malicious prosecution is a failed effort to create conflict where none exists. In an effort to bolster its plea for review, Boca claims that the purported extinction of malicious prosecution is a matter of great public importance. But since the premise that the decision below extinguishes the claim of malicious prosecution is wrong, the notion that extinguishing the claim of malicious prosecution is a matter of great public importance is irrelevant. 6

11 CONCLUSION Based upon the foregoing, Respondents respectfully request that the Court deny the Petition for Certiorari. Respectfully submitted, FELDMAN, GALE & WEBER, P.A. Miami Center 19 th Floor 201 South Biscayne Blvd. Miami, Florida Tel: (305) Fax: (305) By: Lawrence S. Gordon Florida Bar No Jeffrey D. Feldman Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Jurisdictional Brief of the Respondents was delivered via U.S. Mail this 26 th day of March, 2003 to the parties on the attached service list. LAWRENCE S. GORDON 7

12 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 font. LAWRENCE S. GORDON 8