IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-2245 Lower Tribunal No.: 3D10-3042 LATAM INVESTMENTS, LLC., a Florida Liability Company, vs. Petitioner, HOLLAND & KNIGHT, LLP., ET. AL. Respondent. PETITIONER S BRIEF IN SUPPORT OF JURISDICTION TO REVIEW A DECISION OF THE DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT OF FLORIDA GUY SPIEGELMAN, ESQUIRE Suite 912 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Counsel for Petitioner
TABLE OF CONTENTS TABLE OF AUTHORITIES.. iii STATEMENT OF THE CASE AND FACTS.. 4 SUMMARY OF ARGUMENT.. 5 ARGUMENT.. 5-7 CONCLUSION... 7 CERTIFICATE OF SERVICE.. 8 CERTIFICATE OF COMPLIANCE. 8 APPENDIX TAB Third District Court of Appeal, Opinion filed. 1-11 October 19, 2011 ii
TABLE OF AUTHORITIES DelMonico v. Traynor, No. SCI0-1397 4, 5, 7 Echevarria, McCalla, Raymer, Barret & Frappier v. Cole 950 So.2d 380, 380-81 (Fla. 2007).. 4, 5 Levin,Middlebrooks, Mabie, Thomas, Mayes & Mitchell P. A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994) 4, 5, 6, Montejo v. Martin Memorial Medical Center, Inc. 935 So.2d 1266 (Fla. 4 th DCA 1006)... 5, 6, 7 iii
STATEMENT OF THE CASE AND FACTS The Third District Court of appeal affirmed a dismissal of a complaint brought by Latam Investments, LLC. arising out of the defendants' conduct emanating from a federal court proceeding. Latam Investments, LLC. alleged causes of action for abuse of process. The trial court dismissed Latam Investments, LLC. s claims relying on Levin,Middlebrooks, Mabie, Thomas, Mayes & Mitchell P. A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994) and Echevarria, McCalla, Raymer, Barret & Frappier v. Cole, 950 So.2d 380, 380-81 (Fla. 2007). The conduct occurred during service of post judgment execution issued in a case in which Latam Investments, LLC. was not a defendant. The Third District Court of Appeal affirmed on October 14, 2011: "Affirmed. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P. A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994)." and Echevarria, McCalla, Raymer, Barret & Frappier v. Cole, 950 So.2d 380, 380-81 (Fla. 2007). A copy of the opinion is attached. This is a "pipeline" case. This Court is considering the applicability of Levin Middlebrooks in DelMonico v. Traynor, No. SCI0-1397, argued on June 9, 2011, and awaiting decision. That decision may affect the propriety of the affirmance by the Third District. Therefore this case should be held in the "pipeline" pending the decision in DelMonico. 4
SUMMARY OF THE ARGUMENT The trial court held that "[b]ecause the litigation privilege bars Plaintiff's claims," the conduct complained of "is absolutely privileged pursuant to the broad litigation immunity afforded parties and their attorneys, as set forth in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P. A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994)." The Third District affirmed citing Levin, Middlebrooks and Echevarria. Appendix A. Because an issue in the already argued case of DelMonico v. Traynor, No. SC-10-1397, is whether the litigation privilege is absolute or qualified, and because the Petitioner in this case would have been able to pursue her action but for Levin, Middlebrooks, this case is in the "pipeline" and review should be granted and the case held pending a decision in DelMonico. ARGUMENT The Decision Below Conflicts With Montejo v. Martin Memorial Medical Center, Inc., 935 So.2d 1266 (Fla. 4 th DCA 1006) The causes of action in this case stemmed from the defendants' conduct in federal post judgment execution issued as a result of a default judgment entered against Fabrizio D. Neves, Petitioner Latam Investments, LLC., was not a defendant in that action and the Final Judgment that had prompted the Post 5
Judgment Execution was subsequently vacated and the case later dismissed by the Federal Court for lack of subject matter jurisdiction. Nevertheless, because the actions of the defendants were deemed by the trial court to be in the course of judicial proceedings, absolute immunity was accorded under Levin, Middlebrooks, and the complaint was dismissed. That dismissal was then affirmed by the Third District. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P. A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) held that "absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior... so long as the act has some relation to the proceeding." Id. at 608. The holding of the court below conflicts with Montejo v. Martin Memorial Medical Center, Inc., 935 So.2d 1266 (Fla. 4 th DCA 1006) by applying an absolute privilege to conduct harming a non-party to a judicial proceeding. The "course of the judicial proceeding" phrase must be viewed narrowly in order to serve the policies that underlie Levin, Middlebrooks. A "qualified privilege" would better serve those policies. This Court should accept jurisdiction to resolve the conflict between the decision below and Montejo v. Martin Memorial Medical Center, Inc., 935 So.2d 6
1266 (Fla. 4 th DCA 1006). "[C]ourse of judicial proceedings" must have some boundaries, and the Court's decision in DelMonico may establish a principle that is consistent with the qualified privilege that would permit Latam Investments, LLC. to pursue its causes of action. CONCLUSION For the reasons stated above, review should be granted pursuant to Article V, 3 (b)(3), Florida Constitution, and this case held in the "pipeline" until DelMonico is decided. If DelMonico establishes that an absolute privilege is not the only standard for determining the scope of the established privilege, then this case should be remanded with directions to the Third District to either reverse the trial court or reconsider its decision in light of DelMonico. Respectfully submitted, S/ GUY SPIEGELMAN Florida Bar No.: 169689 Suite 912 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Telephone: 305-373-6634 Facsimile: 305-373-6638 e-mail: ggs@spiegelmanlaw.com 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to counsel listed below, by U.S. Mail and e-filed with the Clerk of Court for the Supreme Court of Florida this 21 st day of November, 2011. Stephen F. Rosenthal Peter Prieto, Esq. Podhurst Orseck, P.A. 25 West Flagler St., Suite 800 Miami, FL 33130 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief is in compliance with Rule 9.210, Fla.R.App.P., and is prepared in Times New Roman 14 point font. S/ GUY SPIEGELMAN 8