E-Copy Received Nov 21, 2014 9:23 AM IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D14-0066 PRO-ART DENTAL LAB, INC., Appellant, vs. GREENBERG TRAURIG, LC AND CRAIG S. BARNETT, App ellees. On Appeal from the Seventeenth Judicial Circuit Court in and for Broward County, Florida L.T. Case No.: 08-4098 3 CACE (08) REPLY BRIEF OF APPELLANT PRO-ART DENTAL LAB, INC. B.C.S. GROUP, LC 17501 Biscayne Blvd., Suite 510 Aventura, Florida 33160 Telephone: (305) 354-9313 Facsmile: (305) 354-9314 Counselfor Appellant
TABLE OF CONTENTS PAGE NO. TABLE OF AUTHORITIES. ii PREFACE 1 REPLY STATEMENT OF THE FACTS 1 ARGUMENT 5 I. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT ON PRO-ART S MALICIOUS PROSECUTION CLAIM BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED 5 A. Bonafide termination in Plaintiff s favor 5 B. Probable cause 6 C. Malice 8 LI. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT ON PRO-ART S ABUSE OF PROCESS CLAIM 9 ifi. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE THE LITIGATION PRIVILEGE DOES NOT SHIELD GT AND BARNETT FROM TORT LIABILITY BECAUSE OF THEIR IMPROPER AND FRAUDULENT CONDUCT 9 CONCLUSION 11 CERTIFICATE OF SERVICE 12 CERTIFICATE OF COMPLIANCE 12 1
TABLE OF AUTHORITIES Cases Page Central Florida Mach inely C o., Inc. v. Williams, 424 So.2d 201 (Fla. 2d DCA 1983) 8 City ofpensacola v. Owens, 369 So.2d 328, 329 (Fla. 1979) 8 Crocker v. Diland Coip., 593 So.2d 1096 (Fla. 5 DCA 1992) 3 Duval Jeweliy Fee, Parker & Lloyd, P.A. i. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980) 8 Dykstra-Guiick v. Gulick, 604 So. 2d 1282, 1283 (Fla. 5th D.C.A. 1992) 11 Endacott v. International hospitality, Inc., 910 So.2d 915, 922 (Fla. 2005) 8 Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 959 So.2d 753 (Fla. 4t1 DCA 2007) 3 Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, 1251 (Fla. 2008) 2, 9 S & I mv. v. Payless Flea Markets, Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010)9 Wilson v. O Neal, 118 So.2d 101 (Fla. 1stDCA 1960) 8 Statutes Art. V, 3(b)(4), Fla. Const 11 Rules Fla. R. App. P. 9.030(a)(2)(B) 11 Rule 9.2 10(c) Fla. R.App.P 2 11
Appendix, Supplemental Transcript Answer 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: (R. (A. Record, followed by page number; followed by page number; (SA.) Appendix, followed by page number; (T. ) 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 and; (AB. ) Brief, followed by page number. REPLY STATEMENT OF THE FACTS Appellees are, of course, entitled to provide additional facts supported by the 1
record, which they believe were omitted by Pro-Art s Statement of Facts. However, the right to offer additional facts does not grant the right to convert a statement of facts into argument. In their Statement of Facts, both by omission of material facts and by mis-characterizing certain facts, Appellees are both engaging in argument in their Statement of the Facts as well as attempting to mislead this Court. A prime example of this is the fact that Appellees persist in referring to their county court claim against Pro-Art as an eviction action and that their complaint was merely mis-labeled (AB. 2), when, in fact, the Florida Supreme Court had already concluded that [a]s the drafier of its complaint, V-Strategic made the conscious decision to seek ejectment, along with a damages claim, in a county court despite the fact that ejectment actions are subject to the exclusive original jurisdiction of Florida s circuit courts. Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, 1251 (Fla. 2008). Appellees similarly seek to confuse this Court concerning Pro-Art s Motion for Attorney s Fees and the import of the county court s order denying same. Pro- Art s Motion for Attorney s Fees was filed on May 24, 2006, over two (2) years before the Florida Supreme Court s Pro-Art Dental Lab, Inc. decision. (A. 149-1 The Committee Notes to Rule 9.2 10(c) Fla. R. App. P. state: Subdivision (c) affirmatively requires that no statement of the facts of the case be made by an appellee or respondent unless there is disagreement with the initial brief, and then only to the extent of disagreement. 2
153). The stated basis for the Motion for Attorney s Fees was that the entry of default against Pro-Art was not supported by the then existing case-law of Crocker v. Diland Corp., 593 So. 2d 1096 (Fla. 5 DCA 1992). That argument however was expressly discounted by this Court when it issued its opinion after the Motion for Attorney s Fees was filed on April 25, 2007, declining to adopt Crocker, Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 959 So. 2d 753 (Fla. 4th DCA 2007); and the conflict between Pro-Art Dental Lab, Inc. and Crocker was not ultimately decided until July 10, 2008 when the Florida Supreme Court ruled in Pro-Art Dental Lab, Inc. that {w]ith regard to the conflict issue, we quash the decision of the Fourth District in Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 959 So.2d 753 (Fla. 4th DCA 2007), and approve the decision of the Fifth District in Crocker v. Diland Corp., 593 So.2d 1096 (Fla. 5th DCA 1992). [986 So.2d 1259]. Accordingly, the reason for the county court s denial of Pro-Art s Motion for Attorney s Fees on September 1, 2009 was that because the default issue was subject to appellate dispute, the continued prosecution of the county court action could not be considered as being without merit. The county court s conclusion that there has been no adjudication on the merits of this case and the dismissal of 3
this case does not constitute an adjudication on the merits constitutes entirely superfluous dicta of no bearing to the issues on appeal in this action 2. Additionally misleading is the fact that contrary to Appellees assertions in their Answer Brief that Pro-Art s corporate representative testified that she had no evidence of Appellees fraud or improper conduct (AB. 6-7), Pro-Art s corporate representative specifically testified that GT and Barnett lied to the Court stating: BY MR. SCHWIEP: Q. You re really claiming in this case, that the Greenberg Traurig lawyers said there was a termination, and that was a lie; right? MR. CHARLIP: Object to form. THE WITNESS: It was. BY MR. SCHWIEP: Q. Then that s really the basis for -- A. Yes. Q. --ProArt Dental s complaint? A. At least all of this is a lie. Q. All ofit salie? A. Yes. 2 Although Appellees describe the county court judge as having the most intimate knowledge of GT s actions (AB. 28), in fact, the judge hearing Pro-Art s Motion for Attorney s Fees was new to the matter. 4
Q. Because there was never an agreement to terminate A. Never a agreement. (R. 1436-1437). ARGUMENT I. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT ON PRO-ART S MALICIOUS PROSECUTION CLAIM BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED. A. BonajIde termination in Plaintfj sfavor. In their argument disputing that a dismissal on jurisdictional grounds fails to equate to a bonafide termination of the earlier action in Pro-Art s favor, Appellees, as they do throughout their Answer Brief, cast the law as being absolute, entirely side-stepping the factual issue that destroys their argument. In so arguing, Appellees continue to overstate the support of case authorities and oversimplify the concept of a bona fide termination as an element of the malicious prosecution action against them by characterizing the termination of the earlier case as not bonafide because it was based upon a lack ofjurisdiction. The totality of circumstances surrounding the withdrawal or abandonment of the three separate actions brought by V-Strategic against Pro-Art is the factual issue ignored by Appellees, which factual issue can only have been properly determined by a jury. Under the correct totality of the circumstances standard, genuine issues 5
of material fact exist with respect to whether V-Strategic s voluntary dismissal of the underlying Ejectment action upon remand constitutes a bona fide determination in Pro-Art s favor. The factual disputes regarding the reasons V-Strategic abandoned its lawsuits must be determined by a jury and, as such, such factual issues rendered the Trial Court s entry of a Summary Final Judgment in favor of GT and Barnett error. B. Probable cause. Appellee s lack of probable cause argument is equally indicative of its ignoring the obvious method of legal persuasion. Totally ignoring the seminal fact that Pro-Art s entire claim is premised upon Appellees fraud on the Court, GT and Bamett argue that [ujnder Florida law, a judgment...is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury, or other corrupt means. (AB. 13). 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 alleged 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 6
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. 1640-1800), creating issues of material fact which should have precluded summary judgment in GT and Barnett s favor. Appellees no probable cause argument in their Answer Brief totally ignores those record allegations and once again attempts to mischaracterize the issue as being whether the underlying lease termination agreement was enforceable. (AB. 18-19). Instead, the issue goes well beyond the fact that GT and Bamett either knew or should have known that the underlying lease termination agreement was NOT enforceable, and therefore the claim was untenable. The issue that amounts to fraud is the fact that GT and Bamett tacitly represented to the Court that the lease termination issue had already been conclusively decided in V-Strategic s favor by another court. In their Answer Brief, Appellees state [ajgain, Bamett 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. (AB. 19). Just as it did with the county court, GT and Bamett attempt to mislead this Court by conveniently ignoring the fact that the default judgment entered against Pro-Art in the Miami-Dade Circuit Court breach of contract case was vacated on April 25, 2006 (A. 60) and that 7
Appellees were well aware of such vacation. (R. 1815). Probable cause becomes a question for the jury when material facts are disputed. Endacott v. International Hospitality, Inc., 910 So.2d 915, 922 (Fla. 2005); City ofpensacola v. Owens, 369 So.2d 328, 329 (Fla. 1979). Here, it was disputed as to whether GT and Bamett prosecuted a claim which no reasonable lawyer would regard as tenable. The issue of whether GT and Barnett acted unreasonably by neglecting to investigate the facts and law in making their determination to proceed with the prosecution of their ejectment action was disputed. As such, there were genuine issues of material fact as to whether probable cause to pursue the Ejectment action continued to exist on April 28, 2006 and May 1, 2006, which issues rendered the Trial Court s entry of a Summary Final Judgment in favor of GT and Barnett error. C. Malice Appellees argue in their Answer Brief that Pro-Art presented no direct evidence of malice on the part of GT or Bamett. (AB. 19-20). Nevertheless, such argument ignores the fact that malice may be inferred from a lack of probable cause, Central Florida Machineiy Co., Inc. v. Williams, 424 So.2d 201 (Fla. 2d DCA 1983); Duval Jewelry; Fee, Parker & Lloyd P.A. v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980); Wilson v. 07 /eal, 118 So.2d 101 (Fla. 1st DCA 1960). 8
IL THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT ON PRO-ART S ABUSE OF PROCESS CLAIM. GT and Bamett assert that the S & I mv. v. Payless Flea Markets, Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010) supports affirmance of the dismissal of Pro-Art s abuse of process claim. S & I Inv. is distinguishable because the process used in that case was appropriate for an eviction action. Here, the process utilized was inappropriate for an ejectment action and thus the use of the process was illegal and improper. Pro-Art Dental Lab, Inc., 986 So.2d at 1259 (...the summary procedure of chapter 51 does not apply to ejectment actions...). Nevertheless, because Appellees continue to cling to their characterization of the county court action as an eviction action, they fail to recognize the inherent distinction from the facts of the instant case and those of S & I Inv. Because GT and Barnett did not show that they were entitled to summary judgment on the abuse of process claim the Trial Court s grant of Summary Final Judgment was erroneous because genuine issues of material fact existed as to Appellees improper purposes in exercising such illegal and improper use of the process. III. THE TRIAL COURT ERRED BY GRANTING APPELLEES MOTION FOR SUMMARY JUDGMENT BECAUSE THE LITIGATION PRIVILEGE DOES NOT SHIELD GT AND BARNETT FROM TORT LIABILITY BECAUSE OF THEIR IMPROPER AND FRAUDULENT CONDUCT. Contrary to Appellees assertions, the conduct of GT and Bamett in preparing 9
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 has never been reviewed for the purpose of entering sanctions by any Court. Moreover, were sanctions to have been sought and entered, the purpose of same would have been to punish the attorney s misconduct as opposed to compensate the plaintiff for the losses and damages caused by such conduct. Pro-Art was summarily dispossessed from its leased premises illegally, improperly and without cause. Its business was ruined, as was the life of its principal. Such wrong has yet to be compensated. Pro-Art has been seeking redress of these wrongs and compensation for its damages in every court of this state since April, 2006. Pro-Art s only viable remedy exists in this action. Moreover, the proper parties who should be responsible to render that compensation are truly GT and Bamett because it was their perversion of legal process and their fraud on the court that caused Pro-Art s damages. Essentially, Appellees ask this Court to hold that the litigation privilege encompasses fraud on the Court and absolutely bars all tort claims against attorneys. The majority of jurisdictions who have encountered and decided this issue have correctly found that such privilege does not sweep so broadly as to sanction fraudulent conduct. Pro-Art submits that this Court would send the wrong 10
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. 1f, indeed, this Court would even consider affirmance of the Trial Court based upon the sweep of the litigation privilege, Pro-Art would request that due to the great public importance of the issue, that the matter be certified to the Florida Supreme Court as a question of great public importance. See art. V, 3(b)(4), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(B); Dykstra-Gulick v. Gulick, 604 So. 2d 1282, 1283 (Fla. 5th D.C.A. 1992) (noting the important social implications of the doctrine of interspousal immunity ). CONCLUSION Based on the foregoing facts and legal authorities, Pro-Art requests this Court to reverse the entry of the Summary Final Judgment as to GT and Barnett and remand this matter for trial. Dated: November 21, 2014. Charlip Law Group, LC A ttorneys for Appellant Aventura Bayview Bldg. 17501 Biscayne Blvd., Suite 510 Ayeiura, Florida 33331 /(05) 54-9313 lephone / (305) 354-9 4 acsimile I I 11
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and coffect copy of the foregoing sent via email to Anthony M. Lopez, Esq., aml@mellawyers.com Mar, Eljainek & Lopez, PL, and Paul J. Schwiep, Esq., pschwiep(coffeyburlington.com Coffey Burlington, on this Q(I day of November, 2014. Charlip Law Group, LC Attorneys for Appellant Aventura Bayview Bldg. 17501 Biscayne Blvd., Suite 510 Aventura, Florida 33331 (305) 354-9313 Telephone (305) 354-9314 Facsimile Fla p, B.C.S. #329932 CERTIFICATE OF COMPLIANCE In compliance with Florida Rule of Appellate Procedure 9.2 10(2), counsel for Appellants certifies that the size and style of type used in this Brief is 14 point type, Times New Roman. David.C.S. 12