causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be "free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct," we are obligated to conclude that the act complained of here -- the filing of the complaint — is protected by the litigation privilege. Wolfe v. Foreman, 128 So. 3d 67, 68 (Fla. 3d DCA 2013) (emphasis added). Additionally, the Wolfe decision was recently cited with approval and relied upon in Jackson v. Attorney's Title Insurance Fund, 132 So. 3d 1191 (Fla. 3d DCA 2014) and American Federated Title Corp. v. Greenberg Trauig, P.A., 125 So. 3d 309 (Fla. 3d DCA 2013) in matters involving the litigation privilege. In the instant case, the trial court was legally bound by the Third District Court of Appeal's decision in Wolfe, as the Florida Supreme Court stated unequivocally that a "trial court may not overrule or recede from the controlling decision of" an appellate court. Pardo v. State, 596 So. 2d 665 (Ha. 1996). Just as in Wolfe, all of the actions upon which Appellant relied in his lawsuit against Appellee occurred during the course of, and were directly related to, the litigation. At the Summary Judgment hearing, the following colloquy occurred: THE COURT: Anything outside of the judicial proceeding as potentially or allegedly obnoxious? And as Mr. King brought out earlier the allegations being horrifying, egregious, no matter how you might identify those allegations that were quickly withdrawn, anything that you're aware of that went on outside of the judicial process that is being alleged here? 12 EFTA00613601

MR. BREWER: Not that is being alleged here, Your Honor, no. THE COURT: Mr. King, anything that's being alleged here that goes outside of the broad spectrum that I have read into the record that has its genesis in Echevarria and was quoted by the Wolfe Third District Court of Appeal opinion? MR. KING: There's nothing alleged. (T. 53-54). Accordingly, as explicitly stated in Edwards's own pleadings and discovery responses, and as conceded by Edwards's counsel at oral argument, the events giving rise to Edwards's purported claims against Epstein occurred solely in the course of, and were related to, the litigation, just as occurred in the Wolfe case, mandating Summary Judgment. Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013); American Nat. Title & Escrow of Florida, Inc. v. Guarantee Title & Trust, Co., 748 So. 2d 1054, 1056 (Fla. 4th DCA 1999). See also Montejo v. Martin Memorial Medical Center, Inc., 935 So. 2d 1266, 1269 (Fla. 4th DCA 2006); Fridovich v. Fridovich, 598 So. 2d 65 (Ha. 1992) (stating that the litigation privilege "arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto."). Moreover, the Federal courts, in applying Florida's litigation privilege, have recognized that it has been "expansively interpreted" by Florida courts. In 13 EFTA00613602

Microbilt Corporation v. Chex Systems, Inc., 2013 WL 6628619 (Dec. 16, 2013), the Bankruptcy Court, applying Florida law, avowed: The rule of absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the judicial proceedings. DelMonico v. Traynor, 50 So.3d 4, 7 (Fla. Dist. Ct. App. 2010). The Florida Supreme Court found that absolute litigation immunity was designed to allow a party to `prosecut[e] or defend[] a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.' Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007); see also Levin, 639 So.2d at 608 C[A]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding [...], so long as that conduct has some relations to the proceeding.'). To this end, Florida courts have expansively interpreted the `relates to' requirement. See Rolex Watch U.S.A. Inc. v. Rainbow Jewelry, Inc., 2012 WL 4138028 (S.D. Fla. Sept. 19, 2012) (`[t]he decision to file a lawsuit clearly relates to a judicial proceeding'); DelMonico v. Traynor, 116 So.3d 1205, 1217, 1219 (Fla. 2013) (privilege applies when statements or actions occur `either in front of a judicial officer or in pleading or documents filed with the court or quasi-judicial body'). Id. at *2. See also Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1276 (11th Cir. 2004). In its Order on Appellee's Motion for Summary Judgment, the trial court also correctly determined that "the cases cited by Edwards [in his opposition to Summary Judgment] involved malicious prosecution claims stemming from actions filed by the party themselves [sic], not counsel. In the instant case, it was conceded that all filings were done by an attorney in good standing with the 14 EFTA00613603

Florida Bar, rather than by an individual party." See Trial Court Order granting Summary Judgment. (R. 1202-1205). The law is clear that the Wolfe holding protects both the firm that filed suit and the individual plaintiff, as it unequivocally states that "the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be 'free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.' Wolfe v. Foreman, 28 So. 3d 67 (Fla. 3d DCA 2013). See also Levin, 639 So. 2d at 608 ("[t]he immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties, but to judges, witnesses and counsel as well.") In fact, in R.H. Ciccone Properties, Inc. v. JP Morgan Chase Bank, N.A., 141 So. 3d 590 (Fla. 4th DCA 2014), this Court correctly recognized that "'[t]he purpose of the litigation privilege is to 'free [participants in litigation] to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct?" Id. at 593 (quoting Levin, 639 So. 2d at 608). Appellant correctly acknowledges that in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) the Florida Supreme Court 15 EFTA00613604

not only reaffirmed the Levin decision but also expanded it to include "any act occurring during the course of judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious conduct ... so long as the act has some relation to the proceeding," finding that the policy considerations were the "perceived necessity for candid and unrestrained communications in judicial proceedings." Echevarria, 950 So. 2d at 384; Brief, p. 15. Echevarria unequivocally recognized that "Levin plainly establishes that `[t]he rationale behind the immunity afforded to a defamatory statement is equally applicable to other misconduct occurring during the course of a judicial proceeding," and that "the nature of the underlying dispute simply does not matter." Id. at 384. The Echevarria court concluded by avowing that "[t]he litigation privilege applies across the board to actions in Florida." Id. at 384 (emphasis added). Lacking any relevant precedent to refute the broad expansion of the litigation privilege expressly demanded by Echevarria or the application of the litigation privilege to malicious prosecution claims as required by Wolfe, Appellant asks this Court to ignore Echevarria and Wolfe, urging that application of the litigation privilege to a malicious prosecution claim would completely eviscerate the cause of action for malicious prosecution. However, that very same argument was flatly rejected in both Wolfe and Steinberg. The Wolfe decision, as well as the 16 EFTA00613605

Levin and Echevarria decisions, merely hold 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 such as the alleged misconduct at issue, so long as the act has some relation to the proceeding." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). As a result, if a party seeks to bring a cause of action involving acts that neither occurred during, nor had relation to, the judicial proceeding, a cause of action sounding in malicious prosecution may still be viable. See Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992); Olson v. Johnson, 961 So. 2d 356 (Ha. 2d DCA 2007). Moreover, the Florida Supreme Court judiciously pointed out in Levin that "other tortious conduct during litigation" is still subject to available remedies even though it may be privileged. The Supreme Court held that misconduct by counsel or parties during litigation is "left to the discipline of the courts, the Bar association, and the state." Id. at 608 (emphasis added). As such, contrary to Appellant's assertion, there is neither an absolute bar to all malicious prosecution actions nor an evisceration of adequate legal remedies created by the Wolfe case and its progeny. Rather, these cases only extend a well-established privilege "to any act occurring during the course of a judicial proceeding, regardless of whether 17 EFTA00613606

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, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). See also Echevarria, 950 So. 2d at 384; Wolfe v. Foreman, 28 So. 3d 67, 68 (Fla. 3d DCA 2013). Consequently, based on the undeniable holdings in Wolfe and the cases cited therein, Epstein's actions were absolutely protected by the litigation privilege and Summary Judgment was properly granted. Additionally, Appellant attempts to support his position by referencing the most recent Florida Supreme Court decision applying litigation privilege, DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), which held that statements made outside of the formal judicial process are not protected by the absolute litigation privilege, but rather enjoy a qualified privilege. Id. at 1217. The DelMonico Court's ruling, however, does not limit the Levin and Echevarria rulings. Instead, it is specific to the extremely confined facts in that matter, which were described by the Florida Supreme Court as a "narrow scenario;" referring to out of court statements to potential witnesses where neither both parties nor the court were present. Id. at 1209. Further, the Delmonico decision clarified that the existence of judicial oversight in a proceeding is an important reason behind the 18 EFTA00613607

requirement to apply the privilege to cover acts that occur during the course of, and are related to, the judicial proceeding, stating: "when weighing whether to apply the absolute privilege to that factual scenario, the Court considered that the `safeguards' arising from the `comprehensive control exercised by the trial judge whose action is reviewable on appeal' and the availability of other remedies through which the trial court could mitigate the harm. . ." Id. at 1215 (citing Fridovich, 598 So. 2d at 69). Accordingly, the DelMonico decision affirmatively recognized a litigation privilege where, as in the instant case, there is judicial oversight, but distinguished the "narrow scenario" under which the litigation privilege would not be applied. Inasmuch as that "narrow scenario" is wholly absent in the case at bench, DelMonico is factually distinguishable and inapposite to the instant case, and as such its narrow holding has no bearing on, and should not be considered by, this Court. Similarly, Appellant cites Wright v. Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984) in support of his assertion that the litigation privilege is inapplicable to a malicious prosecution claim. However, such reliance thereupon is misplaced. First, Appellant's characterization of Levin as impliedly approving the survival of a malicious prosecution claim in the Wright case is completely unfounded. In Levin, 19 EFTA00613608

in support of its holding to apply the litigation privilege to a tortious interference claim, the Florida Supreme Court analyzed Wright and cited thereto solely for two propositions: "that the torts of perjury, slander, defamation and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable;" and that "[r]emedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state," and as such "other tortious conduct occurring during litigation is equally susceptible to that same discipline." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (citing Wright, 446 So. 2d at 1164). Accordingly, Levin neither held nor cited to Wright for the proposition that the litigation privilege was inapplicable to a malicious prosecution claim. Second, regardless of what Appellant requests this Court to infer about Wright as a result of its citation in Levin, the Florida Supreme Court subsequently made it abundantly clear in Echevarria that "the nature of the underlying dispute simply does not matter," and mandated that the litigation privilege be broadly applied "across the board to actions in Florida." Echevarria, 950 So. 2d at 384. Accordingly, no matter how the underlying cause of action may be framed, the express guidance from both Levitz and Echevarria is that the litigation privilege 20 EFTA00613609

would be applied to immunize any and all conduct occurring during the course of judicial proceedings so long as it occurred in, and had some relation to, the proceeding. Id. at 384. Finally, Wright is factually distinguishable, because unlike in the instant case, Wright included a cause of action against the attorney who filed the alleged malicious prosecution, not the represented Plaintiff. Wright, 446 So. 2d at 1163. Consequently, this Court should give no consideration to this case. Likewise, Appellant's reliance on Graham-Eckes Palm Beach Academy v. Johnson, 573 So. 2d 1007 (Fla. 4th DCA 1991), is equally as misplaced. Graham- Eckes is a per curiam affirmance in which the Fourth District Court stated, in its single concluding sentence: "[w]hile appellant's argument is persuasive, we hold that its proper cause of action would have been one for malicious prosecution and affirm on the authority of Procacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981)." Id. at 1008. As with Wright, it is undeniable that Graham-Eckes was decided before Echevarria, Levin, and Wolfe. Further, Procacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981), the case upon which the Graham-Eckel court relied in issuing its decision, immunized from suit the "malicious publication" of false statements because they were made during the course of a judicial proceeding. As to those false statements, this Court avowed: "Appellants contend that a proper notice of lis pendens, based on a recorded instrument and filed pursuant to Florida 21 EFTA00613610

law, is a publication much like a pleading or other statement made in the course of a judicial proceeding and therefore, they argue, it enjoys the same immunity. We agree." Id. at 427. Appellant's reliance on Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992) is also erroneous, as in Fridovich the Florida Supreme Court specifically concluded that only a qualified privilege is applicable when private individuals voluntarily make defamatory statements "to the police or the state's attorney prior to the institution of criminal charges." 598 So. 2d at 69 (emphasis added). See also Olson v. Johnson, 961 So. 2d 356 (Fla. 2d DCA 2007) (litigation privilege is inapplicable because basis of lawsuit arose out of statements made to a police officer prior to the initiation of a criminal proceeding). In stark contrast to both the Fridovich and Olson cases, where the conduct occurred prior to any judicial proceedings, the actions upon which the Appellant relies as the basis of his malicious prosecution claim in the instant case were made in and were integral to the judicial proceedings, rendering Fridovich and Olson inapposite. Further, Appellant's citation to dicta from a footnote in SCI Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 702 (Fla. 3d DCA 2002) is equally inapplicable because it is a Third District Court of Appeal case that did not involve a claim for malicious prosecution and was decided before the Third District Court of Appeal decided 22 EFTA00613611

Wolfe, in which it expressly held that the litigation privilege is applicable to a claim for malicious prosecution. Finally, Appellant erroneously submits and analyzes cases from other jurisdictions in further support of his assertion that the litigation privilege does not bar a malicious prosecution claim. Appellant's argument is meritless, as it is incontrovertible that reliance upon these cases is misguided; other jurisdictions are not controlling upon this Court, especially when there is binding Florida precedent directly applicable hereto. Additionally, the Florida Litigation Privilege is a court created doctrine, and as such, case law from other jurisdictions is of no import and has no bearing on this matter. Moreover, binding Florida precedent does not, contrary to Appellant's assertion, bar a malicious prosecution claim. hut rather affords an absolute privilege to acts that occur within, and have a relation to, a judicial proceeding. Wolfe, 28 So. 3d at 68; Levin, 639 So. 2d at 608; Echevarria, 950 So. 2d at 384. The Florida Supreme Court, the First District Court of Appeal, and the Third District Court of Appeal have all undeniably extended the litigation privilege to circumstances such as those present in the case at bench; where all of the acts upon which a party relies in support of a malicious prosecution claim occur within the litigation. Consequently, Summary Judgment was proper. 23 EFTA00613612

CONCLUSION In reliance upon the argument submitted above and the case law cited herein, Appellee submits that the trial court's Order granting Appellee's Motion for Summary Judgment should be affirmed. CERTIFICATE OF TYPE SIZE AND STYLE This Brief is typed using Times New Roman 14 point, a font which is not proportionately spaced. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy was electronically served to the following on February 25, 2015: William B. King Searcy Denny Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Blvd. 3409 Bradley J. Edwards Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 N. Andrews Ave., Ste. 2 Mark Nurik Law Offices of Mark S. Nurik 1 E. Broward Blvd., Ste. 700 Ft. Lauderdale, FL 33301 Philip M. Burlington Burlington & Rockenbach, P.A. Courthouse Commons/Suite 350 444 W. Railroad Avenue West Palm Beach, FL 33401 Fred Haddad Fred Haddad, P.A. 1 Financial Plaza, Ste. 2612 Ft. Lauderdale FL 01 Jack Goldberger Atterbury, Goldberger & Weiss, P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach FL 33401 24 EFTA00613613

W. Chester Brewer, Jr. W. Chester Brewer, Jr. P.A. 250 S. Australian Ave., Ste. 1400 WestP m B h FL 33401 /s/ John Beranek JOHN BERANEK Fla. Bar No.: 0005419 AUSLEY & MCMULLEN, P.A. 123 South Calhoun Street P.O. Box 391 (zip 32302) /s/ Tonja Haddad Coleman Tonja Haddad Coleman, Esq. Florida Bar No.: 176737 Tonja Haddad, PA 5315 SE 7th Street Suite 301 Fort Lauderdale Florida 33301 25 EFTA00613614