There is the sentiment that parties can say and do whatever they want in a judicial proceeding and all actions will be exempt and immune under a litigation privilege. Such sentiment is misguided. There are consequences for malicious / bad faith conduct and statements that cause damage to the adverse party including a claim for malicious prosecution.   The litigation privilege does NOT bar a claim for malicious prosecution because, as mentioned above, there are consequences for malicious conduct. See Debrincat v. Fischer, 2017 WL 526508 (Fla. 2017).

This issue was recently confirmed by the Florida Supreme Court where the Court explained that a claim for malicious prosecution exists when there is the following:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.

Debrincat, 2017 WL at *2 quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).

As the Court reasoned, there would never be a claim for malicious prosecution if the litigation privilege barred malicious or bad faith conduct that occurred in the original proceeding.

Another recent case, AGM Investors, LLC v. Business Law Group, P.A., 42 Fla. L. Weekly D886b (Fla. 2d DCA 207), also involved a claim for malicious prosecution (and related tort claims) against a party and law firm.  Here, the Second District went a step further to state that “tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration.” AGM Investors, supra (finding that law firm’s recording of condominium assessment liens was not absolutely protected under the litigation privilege unless such action was necessarily preliminary to future lien enforcement litigation contemplated in good faith).

Remember, just like anything else, there are potential consequences to decisions and actions made with malice / bad faith, even if such conduct was made prior to or during the course of an original judicial proceeding.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

A motion for summary judgment is a dispositive motion that is popularly filed before trial. However, it is a motion that is denied far more than it is granted because of the burden imposed on the party moving for summary judgment in order to prevail on the motion.  

“Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Lin v. Demings, 2017 WL 1534824, *1 (Fla. 5^th DCA 2017) quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006).   A motion for summary judgment is not designed to determine the credibility of a witness or even weigh the evidence; that is what trial is for. Id.

Think about the key issue moving for a summary judgment: “there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.”   The burden is on the party moving for summary judgment to establish that there is irrefutably no genuine issue of material fact. Lin, supra, at *1; ALX Maxim I, LLC v. Katsenko, 2017 WL 1683126, *1 (Fla. 2d DCA 2017). If there is a genuine issue of material fact, or even the slightest inference or doubt that a material factual issue exists, that doubt must be construed against the moving party and the motion denied. Id. quoting Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011); Lee County Department of Transportation v. The Island Water Association, Inc., 2017 WL 1403359, *2 (Fla. 2d DCA 2017).  This is why more motions are denied than granted. 

When drafting a motion for summary judgment, it is important that the party truly consider those material factual issues applicable to the legal argument supporting the summary judgment. For example, when drafting a summary judgment, I always have a solid understanding of the law I am going to be relying on. Based on this law, I focus on identifying those specific material facts relative to the issue. It is these facts that that will support the basis of the legal argument(s). A good motion for summary judgment is not an instantaneous motion. It requires time organizing and itemizing those specific facts and crafting legal analysis around those specific facts.   These facts will help determine whether moving for a final summary judgment or a partial summary judgment as to liability or damages or an issue in the case.  Plus, even if a party loses a motion, at a minimum, they want to be in position to inform the court about their case and theory.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

Claims for fraudulent inducement and fraudulent misrepresentation are claims that are oftentimes pled despite there being a contract being the parties. Besides these claims being fact-based and challenging to prove in certain instances, they are harder when there is a contract between the parties. Fraud is only actionable if it is separate and distinct from the contract. In other words, fraud needs to give rise to a tort claim independent of the contract; a breach of contract is not fraud because the fraud is not independent of the contractual breach. See Peebles v. Puig, 42 Fla.L.Weekly D1080a (Fla. 3d DCA 2017).

The Peebles case illustrates this situation.   Here, a real estate agent was under contract with a developer to sell high-end condominium units; in exchange she would get a commission. Her employment contract was later assigned to an exclusive brokerage firm for the developer. Purchasers of these high-end units wanted to re-sell their units to other buyers. The real estate agent understood and was told by the principal of the brokerage firm (who was also a principal of the developer) that she would get commission on the re-sale of such units. As such, she helped re-sell more than 20 of these units. The brokerage firm later argued she was not entitled to such commission on the re-sale of units, which resulted in this lawsuit for unpaid commissions. One of the claims asserted was a fraudulent representation claim against the principal of the brokerage firm / developer based on what he represented to the agent that induced her to re-sell units. (Notably, the brokerage firm filed for bankruptcy at some point making the fraud claim against the principal the likely only avenue of actual monetary recovery.)

A jury returned a verdict in favor of the real estate agent on her fraud claim against the principal. However, this was reversed on appeal because the agent’s damages (lost commission) were not independent of the breach of her employment contract.   The Third District explained: “As reprehensible as the jury may have found Peebles’s [principal] actions to be, those actions neither converted Puig’s [real estate agent] claim for contract damages into a claim for tort damages, nor imposed on Peebles personal liability for PADC’s [brokerage firm] contractual obligations.” See Peebles, supra.  Stated differently, the real estate agent’s claim was based on alleged fraud during the performance of her contractual duties. However, her damages were not independent of the contract; her damages were predicated on lost commission. Thus, her damages were based on a contractual breach and not separate and distinct conduct giving rise to independent damages.

This appears to be a case of lawyers doing a good job trying to maximize the collection of payment for their client through the pursuit of a fraud claim.  While the facts where there to support the terrible conduct of the principal, the facts simply bolstered a contractual breach, but not an avenue to pursue independent personal liability.   

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it.   The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment.

The recent opinion in Evans v. HSBC Bank, USA, 42 Fla. L. Weekly D1033a (Fla. 2d DCA 2017) is but another example of the business records exception coming up in a mortgage foreclosure case.   At trial, the lender offered the testimony of an employee of a loan subservicer to introduce the borrower’s payment history from different servicers. Her knowledge came from reviewing records. However, she confirmed during examination that (i) she really did not create the payment history of the borrower, (ii) another servicer created most of the payment history, (iii) the payment history was transferred over to her company, (iv) she did not know who created most of the entries on the payment history, and (v) she did not know the procedures used to incorporate other payment servicer’s records into her company’s records. Notwithstanding, the trial court admitted the payment history into evidence over the borrower’s objection that the payment history was inadmissible hearsay not satisfying the business records exception to the hearsay rule.

As you know from prior articles, hearsay is an out of court statement (written or oral) offered for the truth of the matter asserted.   Thus the payment history (a written out of court statement) is hearsay.   But, there are exceptions to the hearsay rule to introduce certain hearsay evidence. One applicable exception is the business records exception.

To admit a business record under the exception, a party must lay the right foundation that:

• the business record was made at or near the time of the event;
• the business record was made by or from information transmitted by an individual with knowledge;
• the business record was kept in the ordinary course of business; and
• it was a regular practice of the business to make such a record.

Of course, there is more to this with many cases discussing these foundational requirements. In this case, the witness could not properly lay the foundation since she did not know the procedures of prior loan servicers or even the procedure to incorporate their business records into her company’s business records. There was no testimony establishing the reliability of such records that is the hallmark to admitting evidence under a business records exception to the hearsay rule.   Based on this lack of reliability, the appellate court reversed the trial court’s ruling.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us: