EFTA01135038.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMI3AG JEFFREY EPSTEIN, Plaintiffs vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and EL, individually, Defendant, NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF EDWARDS' MOTION FOR RECONSIDERATION Bradley Edwards hereby files this notice of his reliance upon the additional authority attached, and would show that the attached opinion of the Fourth District Court of Appeal further evidences the Fourth District's adherence to the universally accepted recognition that claims for malicious prosecution are an exception to the litigation privilege's absolute bar of claims arising out of misconduct in the course of litigation. This opinion reflects a direct conflict between the interpretation of the scope of the litigation privilege reflected in the Third District's Wolfe decision and the Fourth District's repeated and consistent recognition of the continued viability of the tort of malicious prosecution in the context of circumstances where the litigation privilege has supported the dismissal of other accompanying claims. EFTA01135038 Edwards adv. Epstein Case No.: 502009CA040800)0000ABAG Notice of Supplemental Authority in Support of Edwards' Motion for Reconsideration Page 2 of 3 I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Scrve to all Counsel on the attached list, this I 7 darafebruary, 2014. JA61(SCARoLA Florida Bar No.: 169440 Attorne 1-Mail(s P SFxondary E-Mail(s): Searcy Denney Scarola Barnhart & Shipley, 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phon Attorneys for Bradley J. Edwards EFTA01135039 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Notice of Supplemental Authority in Support of Edwards' Motion for Reconsideration Page 3 of 3 COUNSEL LIST William Chester Brewer, Esquire One E Broward Blvd., Suite 700 Fort Lauderdale, FL 33301 250 S Australian Avenue, Suite 1400 Phone: (954)-745-5849 West Palm Beach, FL 33401 Fax: (954)-745-3556 Phone: (561)-655-4777 Attorneys for Scott Rothstein Fax: (561)-835-8691 Attorneys for Jeffrey Epstein Ton'a Haddad Coleman, Esquire Jack A. Goldber r, Debb Tonja Haddad, Atterbury, Goldberger & Weiss, E. 315 SE 7th Street, Suite 301 250 Australian Avenue South, Suite 1400 Fort Lauderdale, FL 33301 West Palm Beach, FL 33401 Phone: (954)-467-1223 Phone: (561)-659-8300 Fax: (954)-337-3716 Fax: (561)-835-8691 Attorneys for Jeffrey Epstein Attorneys for Jeffrey Epstein sBradle Ec wards, it. ire Farmer, Jaffe, Weissing, Edwards, Fistos 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: (954)-524-2820 Fax: (954)-524-2822 Fred Haddad, Esquire Dee redHaddadLaw.com; Fred Haddad, One Financial Plaza, Suite 2612 Fort Lauderdale, FL 33394 Phone: (954)-467-6767 Fax: (954)-467-3599 Attorneys for Jeffrey Epstein Marc S. Nurik, Es Esquire Law Offices of Marc S. Nurik EFTA01135040 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly D583 In reviewing propriety of dismissal of 652 So.2d 869 complaint, reviewing court confines its analysis District Court of Appeal of Florida, to what appears within four corners of amended Fourth District. complaint, and must accept as true well-pleaded allegations. Nancy Grace RUSHING, Terri Ruth Carter, and Robert Stanley Stone as Next Friend of Tiffany I Cases that cite this headnote Dawn Moore, a Minor, Appellants, v. Richard E. BOSSE, Charles, It. Chilton, and Shari Bunn, Chilton Sr Holden, Appellees. Ill Adoption No. 93- 3588. I March 8, 1995. ,:.=Adoption agencies and facilitators Adoption C.—Notice Grandparents, individually and on behalf of child who was subject of adoption proceeding, brought action When child who is to be placed for adoption has against attorneys for prospective adoptive parents to lived with grandparent for at least six months, recover for professional negligence, malicious intermediary handling adoption is required to prosecution, civil conspiracy, and intentional infliction of notify grandparent of pending adoption before emotional distress. Attorneys moved to dismiss petition for adoption is filed. West's F.S.A. § complaint, and the Circuit Court of Palm Beach County, 63.0425(l ). Thomas E. Sholts, J., granted motion. Child and grandparents appealed, and the District Court of Appeal, Pariente, J., held that: (I) cause of action for professional negligence on behalf of adopted child against attorney who institutes private adoption proceeding does not require privity between child and attorney; (2) complaint stated cause of action for malicious prosecution on behalf I3I Attorney and Client of child even though child was not defendant in adoption c—Duties and liabilities to adverse parties and to proceeding; but (3) grandparents who were not subject of third persons adoption proceeding and against whom proceeding was not directed could not bring malicious prosecution action; Ordinarily, attorney's liability for legal (4) violation of Rule of Judicial Administration regarding malpractice is limited to those with whom attorney's signature on pleadings and papers may not attorney shares privity of contract; however, provide independent wrong supporting civil conspiracy limited exception to privity requirement has action; and (5) attorneys' conduct did not give rise to been carved out where plaintiff is intended cause of action for intentional infliction of emotional third-party beneficiary of attorney's actions and distress. it is apparent intent of client to benefit third Affirmed in part, reversed in part, and remanded. 4 Cases that cite this headnote West Headnotes (24) Negligence ,_Privity In Appeal and Error ,..=Extent of Review Dependent on Nature of Although privity of contract may create duty of Decision Appealed from care providing basis for recovery in negligence, Appeal and Error lack of privity does not necessarily foreclose ...--Striking out or dismissal liability if duty of care is otherwise established. Next 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01135041 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly D583 care to act in child's best interests. I Cases that cite this headnote 151 Adoption ...-Adoption agencies and facilitators 191 Attorney and Client Adoption Order or decree ..--Duties and liabilities to adverse parties and to third persons "Intermediary" represents adoptive parents and acts as intermediary for child's placement; upon Cause of action for professional negligence on entry of preliminary order of adoption, behalf of adopted child against attorney who intermediary ceases to be child's guardian, institutes and proceeds with private adoption adoptive parents become child's guardians, and proceeding does not require privity between intermediary assumes supervisory role. West's child and attorney. F.S.A. §§ 63.052(I ), 63.085(1Xf), 63.122(1). I Cases that cite this headnote I Cases that cite this headnote Malicious Prosecution 161 Adoption =Nature and form of remedy C.—Nature of the proceeding Essence of tort of malicious prosecution is Adoption proceedings are unique, and in misuse of legal machinery for improper purpose. adoption proceeding intended beneficiary of proceeding is child to be adopted. 2 Cases that cite this headnote Malicious Prosecution Civil Actions ICI Adoption Malicious Prosecution =Nature of the proceeding J-Necessity of arrest of person or seizure of property Adoption is civil proceeding intended to serve best interests of child. West's F.S.A. § 63.01 et While originally actions for malicious seq. prosecution were predicated only on previous I Cases that cite this headnote prosecution of criminal proceedings, today action for malicious prosecution of civil action will lie even if there is no arrest or seizure. Adoption _=•Adoption agencies and facilitators While duty is imposed on judiciary in making ozi decision regarding best interests of child in Malicious Prosecution adoption proceeding, attorney instituting and Civil proceedings other than actions advancing proceeding, and in particular attorney/intermediary, must also exercise due Person who is victim of proceeding to have person declared insane, consequently restraining person's liberty and committing person to care .Next 0 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA01135042 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2983, 20 Fla. L. Weekly D583 and custody of institution, may maintain action on malice or absence of probable cause provides for malicious prosecution based on institution of appropriate redress for wrong. unfounded proceeding. 1 Cases that cite this headnote pal Malicious Prosecution Malicious Prosecution ...=Persons entitled to sue ,...=Persons liable Grandparents who were in custody of child who Action for malicious prosecution may be was subject of adoption proceedings could not brought against attorney who has wrongfully bring malicious prosecution action against filed incompetency proceeding by person who attorneys for prospective adoptive parents was subject of incompetency proceeding, even separate from child's cause of action; even though person is not named as defendant and assuming that grandparents were entitled to purpose of proceeding may theoretically be in notice of proceeding and affected by outcome, person's best interests. grandparents were not subject of adoption proceeding and adoption proceeding was not directed against them. 4) Malicious Prosecution :=Description of prosecution till Malicious Prosecution Complaint brought on behalf of child who was .—Nature and elements of malicious prosecution subject of adoption proceedings which alleged in general that attorneys for prospective adoptive parents commenced and continued adoption proceeding, To prevail in malicious prosecution action, initiated proceeding knowing that it was plaintiff must prove commencement or baseless, advanced proceeding after its baseless continuance of original proceeding, legal nature had been explicitly pointed out, and took causation of proceeding by present defendant actions with effect of wrongfully moving child against plaintiff, bona fide termination of from her home stated claim for malicious proceeding in favor of plaintiff, absence of prosecution against attorneys. probable cause for prosecution, presence of malice, and damages conforming to legal 2 Cases that cite this headnote standards resulting to plaintiff. I Cases that cite this headnote Malicious Prosecution ..--Persons entitled to sue till Malicious Prosecution It is not necessary for child who was subject of .--Inference from want of probable cause adoption proceeding to have been named as defendant in adoption proceeding in order for Although malice must be pled to state claim for child to be able to bring action for malicious malicious prosecution, malice can be inferred prosecution; child was actual subject of adoption from lack of probable cause to institute proceeding, and allowing action for malicious proceedings. prosecution on behalf of child for initiation or maintenance of adoption proceeding predicated Next 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01135043 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly D583 Absolute immunity was afforded to any conduct by attorneys occurring during course of adoption proceeding, regardless of whether conduct involved defamatory statement or other tortious 1191 Malicious Prosecution behavior, including violation of rule establishing L—Persons liable that signing of pleading or paper by attorney is certificate that pleading or paper is Fact that defendants are attorneys does not well-grounded, because signing petition for immunize them from malicious prosecution adoption and subsequent documents required for action if evidence establishes that they instituted proceeding had some relation to adoption claim which reasonable lawyer would not regard proceeding. West's F.S.A. R.Jud.Admin.Rule as tenable or unreasonably neglected to 2.060(d). investigate facts and law in making determination to proceed, provided that other 3 Cases that cite this headnote elements of malicious prosecution are also proven. I Cases that cite this headnote 1231 Appeal and Error :—Review of questions of pleading and practice Damages :—Mental suffering and emotional distress POI Conspiracy ..-Nature and Elements in General Standard for reviewing complaint to ascertain whether it states cause of action for intentional In order to plead cause of action for civil infliction of emotional distress is whether conspiracy, there must be underlying allegations on face of complaint would permit independent wrong or tort. jury to consider defendants' conduct as reckless and utterly outrageous in civilized community. 4 Cases that cite this headnote 2 Cases that cite this headnote 1211 Conspiracy —Nature and Elements in General Damages .=Particular Cases Violation of Rule of Judicial Administration under which signature of attorney on pleading or Actions of attorneys who prosecuted adoption paper constitutes certificate that attorney has proceeding on behalf of prospective adoptive read pleading or other paper and that to best of parents in which child was sought to be taken attorney's belief there is good ground to support away from grandparents with whom she was paper or pleading does not provide independent living did not give rise to cause of action for wrong on which action for civil conspiracy may intentional infliction of emotional distress where be based. West's F.S.A. R.Jud.Admin.Rule child was initially brought to attorney by child's 2.060(d). mother who had legal custody of child, even though attorneys may have failed to make 3 Cases that cite this headnote proper investigation and committed other improper acts which gave rise to causes of action on child's behalf for attorney malpractice and malicious prosecution. nn Libel and Slander 2 Cases that cite this headnote :—Briefs, arguments, and statements of counsel Next 2014 Thomson Reuters. No claim to original U.S. Government Works. EFTA01135044 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly D583 The amended complaint specifically alleged that, in filing the petition for adoption, Chilton counseled the adoptive parents, Dr. and Mrs. Patsner, to falsify Florida residency Attorneys and Law Firms in order to circumvent section 63.185 and subsection 63.207(IXb), Florida Statutes (1991), which prohibit *872 Patrick Dekle, Tampa, and Peter J. Grilli of Grilli adoptions by out-of-state residents. Further allegations of and Cook, Tampa, for appellants. wrongdoing were that Chilton gave the mother a check for $1,500 to induce her to give him custody of the child, Richard E. Bosse, pro se. and that both Chilton and Bosse impermissibly gave the mother money labeled as "loans" and paid for hotel Matthew R. Danahy of Shofi, Smith, Hennen, Jenkins, expenses. If proven, such behavior would be contrary to Stanley & Gramovot, Tampa, for subsections 63.212(I Xd) and (t), Florida Statutes (1991). aisrellees—Chilton and Sharit, Bunn, Chilton & Holden, Pi Additional acts and omissions alleged in the amended Opinion complaint include the failure of Chilton to properly investigate prior to the filing of the adoption petition and PARIENTE, Judge. the failure of both Chilton and Bosse to notify the child's natural father, grandmother or great-grandmother of the pending petition, even though both attorneys knew of This appeal involves the propriety of dismissing their existence. Subsection 63.0425(l), Florida Statutes appellants' amended complaint alleging misconduct by (1991), requires that when a child, who is to be placed for the attorneys who instituted and continued a private adoption, has lived with a grandparent for at least 6 adoption proceeding resulting in the minor child's months, the intermediary handling the adoption shall removal from the state of Florida and from the care of her notify that grandparent of the pending adoption before the grandmother and great-grandmother for a ten-month petition for adoption is filed. period. The amended complaint consisted of four counts—professional negligence, malicious prosecution, civil conspiracy and intentional infliction of emotional distress. PROFESSIONAL NEGLIGENCE (LEGAL In In reviewing the propriety of dismissing the amended MALPRACTICE) complaint, we confine our analysis to what appears within 131 141 Ordinarily, an attorney's liability for legal the four corners of the amended complaint, and must malpractice is limited to those with whom the attorney accept as true the well-pleaded allegations. Kittredge v. shares privity of contract. See Brennan v. Rayner, 640 Metropolitan Life Ins. Co., 577 So.2d 999 (Fla. 4th DCA So.2d 143 (Fla. 4th DCA 1994). Defendants argue here, 1991); Aaron v. Allstate Ins. Co., 559 So.2d 275 (Fla. 4th as they did to the trial court below, that legal malpractice DCA 1990); Viennean v. Metropolitan Life Ins. Co., 548 is not cognizable in this case because no privity existed So.2d 856 (Fla. 4th DCA 1989). The amended complaint between the child and defendants giving rise to a duty alleged serious wrongdoing on the part of appellees, owed by defendants to the child. However, despite Richard A. Bosse (Bosse) and Charles R. Chilton defendants' protestations, a limited exception *873 to the (Chilton), both members of the Florida Bar and against privity requirement has been carved out where a plaintiff Chilton's law firm (collectively, defendants), which is an intended third-party beneficiary of an attorney's caused the two-year old child to be taken from the care of actions and it is the apparent intent of the client to benefit her grandmother and great-grandmother, both of whom the third party. See Angel, Cohen and Rogovin v. Oberon had essentially raised the child from birth, and placed out Inv., 512 So.2d 192, 193-94 (Fla.I987). We do not of state with the adoptive parents for a critical period of read Oberon as creating an exception to the privity time. Chilton, in addition to acting as the attorney for the requirement limited solely to the area of will drafting. See adoptive parents, also acted in the specific capacity as intermediary for the child's placement. Greenberg v. Mahoney Adonis & Criser, E., 614 So.2d 604 (Fla. 1st DCA 1993), review denied, 624 So.2d 267 (Fla.I 993). Although privity of contract may create a duty The amended complaint stated that Chilton improperly of care providing the basis for recovery in negligence, filed the petition for adoption and that both Chilton and lack of privity does not necessarily foreclose liability if a Bosse wrongfully continued the adoption proceeding with duty of care is otherwise established. See knowledge of the harm that would be caused to the child. Baskerville-Donovan Engineers, Inc. v. Pensacola Next m 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA01135045 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly D583 Executive House Condominium M, Inc., 581 So.2d affirm the dismissal of this count brought by the 1301, 1303 (Fla.1991). grandmother and great-grandmother. Defendants assert that the adoption proceeding was not technically "against" 161 In this case, not only was the child the intended the child, relying on case law which *874 lists the first beneficiary of the adoption, but defendants were the essential element of malicious prosecution to be, "(1) an attorneys for the adoptive parents, who evidently intended original criminal or civil judicial proceeding against the to benefit the child by adopting her. Compare Brennan. present plaintiff was commenced or continued." Alamo Since Chilton also served as an intermediary for the child, Rent—A—Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 there were additional responsibilities that he owed (Fla 1994); see also Wright v. Yurko, 446 So.2d 1162, directly to the child.' In this case, we are thus dealing with 1165 (Fla 5th DCA 1984). We first note that in listing the a private placement adoption through an intermediary. essential elements of the tort, the supreme court in Alamo relied on its prior opinions in Burns v. GCC Beverages, 161 17I lei Adoption proceedings are unique. In an adoption Inc., 502 So.2d 1217 (Fla.1986) and Adams v. Whitfield, proceeding, the intended beneficiary of the proceeding is 290 So.2d 49 (Fla.1974). In both Burns, 502 So.2d at the child to be adopted. The Florida Supreme Court has 1218, and Adams, 290 So.2d at 51 (citing Duval Jewelry recognized that an adoption pursuant to chapter 63, Company v. Smith, 102 Fla. 717, 136 So. 878 (1931)), the Florida Statutes (1985), is a civil proceeding intended to first essential element is stated to be that "(I) the serve the best interests of the child.' Matter ofAdoption of commencement of an original civil or criminal judicial Doe, 543 So.2d 741 (Fla.1989), cert. denied, 493 U.S. proceeding."' None of the earlier supreme court opinions 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989). In doing so, nor prior opinions of this court hold that the plaintiff in the court noted subsection 63.022(1), Florida Statutes the malicious prosecution action must be actually named (1987), which provides: "It is the intent of the Legislature as the defendant in the first proceeding, see supra note 3, to protect and promote the well-being of persons being although this would logically follow in most types of civil adopted and their natural and adoptive parents and to and criminal proceedings. provide to all children who can benefit by it a permanent family life." The supreme court found the legislature 11011H1 The essence of the tort of malicious prosecution is made its intent even more explicit by adding subsection the misuse of legal machinery for an improper purpose. 63.022(2)(/ ) which states: "In all matters coming before See S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 the court pursuant to this act, the court shall enter such (Fla.1938). Actions for malicious prosecution initially orders as it deems necessary and suitable to promote and were predicated only on the previous prosecution of protect the best interests of the person being adopted." criminal proceedings. 24 Fla.Jur.2d, False Imprisonment While a duty is imposed on the judiciary in making a and Malicious Prosecution § 15 (Supp.1994). Some decision regarding the best interests of the child, the jurisdictions still do not afford redress for malicious attorney instituting and advancing the proceeding, and in prosecution of a civil action, unless there has been a particular, the attorney/intermediary, must also exercise seizure of property, an arrest of the person or other special due care to act in the child's best interests. circumstances, id.; see also 52 Am.Jur.2d, Malicious Prosecution § 10. In Florida, however, an action for 191 Because we hold that a cause of action for professional malicious prosecution of a civil action will lie even if negligence against the attorney who institutes and there is no arrest or seizure. Tatum Bros. Real Estate & proceeds with a private adoption proceeding does not Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 require privity between the child and attorney, we reverse (Fla.1926). the dismissal of this count brought on behalf of the child. We specifically do not reach the issue, which has not been Ini 1131 Although no case has dealt with malicious raised either before the trial court or on appeal, of the prosecution based on the prior institution of an adoption, nature and extent of legally cognizable damages which there is no sound policy reason to exempt wrongfully could be recovered on the child's behalf as a result of filed adoption proceedings from the tort of malicious defendants' actions. prosecution, especially where the damage the child is claimed to have suffered flows directly from the seizure of the child. The supreme court has acknowledged malicious prosecution actions in the context of a proceeding recognized as neither criminal nor civil—a MALICIOUS PROSECUTION proceeding to have a person declared insane, consequently restraining the person's liberty and We also reverse the dismissal of the malicious committing the person to the care and custody of an prosecution count brought on behalf of the child, but ' • - Next (0 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA01135046 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633. 20 Fla. L. Weekly D583 institution. See Fisher v. Payne, 93 Fla. 1085, 113 So. 378 adoption proceeding directed against them. (Fla-1927); Perez v. Rodriguez, 155 Fla. 501, 20 So.2d 654 (Fla.1945). The person who is the victim of such a 1171 1181 1191 The other elements necessary to maintain a proceeding may maintain an action for malicious cause of action for malicious prosecution' were prosecution based on the institution of the unfounded sufficiently pled for purposes of withstanding a motion to proceeding. Fisher, 93 Fla. at 1094, 113 So. at 381. An dismiss. For example, although malice must be pled, action for malicious prosecution may also be brought malice can be inferred from a lack of probable cause to against an attorney who has wrongfully filed an institute the proceedings, which was adequately pled in incompetency proceeding by the person who was the this case. See Duval Jewelry Company v. Smith, 102 Fla. subject of the incompetency proceeding, even though the 717, 720, 136 So. 878, 880 (1931); Adams, 290 So.2d at person is not named as a defendant and the purpose of the 51; Mancusi, 632 So.2d at 1357. The fact that Chilton and proceeding may theoretically be in that person's best Bosse are attorneys does not immunize them from a interest. See, e.g., Laird v. Potter, 367 So.2d 642 (Fla. 3d malicious prosecution action if the evidence establishes DCA 1979), cert. denied 378 So.2d 347 (FIa.1979). The that they instituted a claim which a reasonable lawyer improper initiation of these types of proceedings may would not regard as tenable or unreasonably neglected to result in the person's involuntary seizure and deprivation investigate the facts and law in making a determination to of liberty. proceed, provided that as long as the other elements of a malicious rosecution are also proven. See Fee, Parker & 1141 Here, by analogy, the effect of the institution and Lloyd, . v. Sullivan, 379 So.2d 412 (Fla. 4th DCA continuation of the adoption *875 proceeding was the 1980), cert. denied, 388 So.2d 1119 (Fla.1980). child's involuntary seizure and removal from her home. The child is seeking redress for harm allegedly caused by her involuntary seizure resulting from the filing of the adoption petition. The amended complaint contained allegations that defendants commenced and continued the CIVIL CONSPIRACY adoption proceeding, the subject of which was the child. The amended complaint also alleged that defendants 1201 12" 1221 We turn next to the count for civil conspiracy initiated the proceeding, knowing it was baseless; and affirm the dismissal. In order to plead a cause of advanced it after its baseless nature had been explicitly action for civil conspiracy there must be an underlying pointed out to them; and that defendants' actions had the independent wrong or tort. The only independent wrong effect of wrongfully removing the child from her home appellants alleged in this case was a violation by causing harm to the child. defendants of Florida Rule of Judicial Administration 2.060(d)' However, *876 we reject appellants' contention I's) We do not agree that as a prerequisite to stating a that violation of this rule provides an independent wrong cause of action for malicious prosecution that, in the on which to base civil conspiracy. Compare Blatt v. context of an adoption proceeding, it is necessary for the Green, Rose, Kahn & Piotrkowski, 456 So.2d 949 (Fla. 3d child to have been named as a defendant. The child was DCA 1984). Additionally, absolute immunity would be the actual subject of the adoption proceeding and was afforded to any conduct by defendants occurring during named in the caption. Even if the adoption proceeding is the course of the adoption proceeding, regardless of theoretically in the best interests of the child, the whether the conduct involved a defamatory statement or commencement and continuation of the adoption other tortious behavior, including a violation of rule proceeding had the effect of removing the child from her 2.060(d) because signing the petition for adoption and home, allegedly resulting in harm. Allowing an action for subsequent documents required for the proceeding has malicious prosecution on behalf of the child for the some relation to the adoption proceeding. Levin, initiation or maintenance of an adoption proceeding Middlebrooks, Mabie, Thomas, Maya & Mitchell, Ill. v. predicated on malice or the absence of probable cause U.S. Fire Ins. Ca, 639 So.2d 606 (Fla.1994). provides an appropriate redress for this wrong. 1161 We do, however, agree that the grandmother and great-grandmother in their individual capacities may not INTENTIONAL INFLICTION OF EMOTIONAL bring a separate malicious prosecution action. Even DISTRESS assuming the grandmother and great-grandmother were entitled to notice and affected by the outcome, they were 1231 1241 As to the remaining count for intentional infliction neither the subject of the adoption proceeding nor was the of emotional distress, we also affirm the dismissal. The Next C 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA01135047 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly 0583 standard for reviewing the amended complaint to disregard evidence of the Florida Bar proceedings and the ascertain whether it states a cause of action for intentional transcript of the temporary custody hearing. This evidence infliction of emotional distress is whether the allegations was not before the trial court and would not properly be on the face of the amended complaint would permit a jury considered on a motion to dismiss, which tests only the to consider defendants' conduct as reckless and utterly well-pleaded allegations of the complaint. See, e.g., outrageous in a civilized community. Scheller v. Merlin v. Boca Raton Community Hosp., Inc., 479 So.2d American Medical Intern., Inc., 502 So.2d 1268 (Fla. 4th 236, 239 (Fla. 4th DCA 1985); see also Hopke v. DCA 1987), review denied, 513 So.2d 1060 (Fla.1987), O'Byrne, 148 So.2d 755 (Fla. 1st DCA 1963); Lewis State appeal after remand, 590 So.2d 947 (Fla. 4th DCA 1991), Bank v. Travelers Ins. Co., 356 So.2d 1344 (Fla. 1st DCA review dismissed, 602 So.2d 533 (Fla.1992). We do not 1978). Accordingly, we will not at this time consider the agree that the facts in this case approach those in Ford effect of Chilton's and Bosse's Florida Bar proceedings as Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st defensive collateral estoppel in this case. See Stogniew v. DCA 1979), cert. dismissed, 379 So.2d 204 (Fla.1979), McQueen, 638 So.2d 114 (Fla. 2d DCA 1994), review where the credit company intentionally lied to the debtors granted, No. 83,881 (Fla. Dec. I, 1994). by telling them that their child was in a serious accident for the sole purpose of inducing the debtors to disclose In conclusion, we reverse the dismissal of the counts for their whereabouts. Here, the child was brought to Chilton professional negligence and malicious prosecution by her mother, who had legal custody of the child. While brought on behalf of the child. We affirm the dismissal of defendants may have failed to make a proper investigation the grandmother and great-grandmother's claim for and committed other improper acts listed in the amended malicious prosecution and the remaining counts, brought complaint, there are no other facts pled to lead to a on behalf of the child and by *877 the grandmother and conclusion that defendants' actions would be deemed great-grandmother, for civil conspiracy and intentional utterly outrageous to a civilized society. infliction of emotional distress. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. CONCLUSION Finally, we note that Chilton and Boose have attempted to insert in the record on appeal the Florida Bar Grievance proceedings on this matter which were successfully WARNER and STEVENSON, JJ., concur. resolved in their favor and the transcript of a separate adoption proceeding brought by appellants subsequent to the adoption which generated this case. In reversing the Parallel Citations order and allowing this case to go forward on causes of action for legal malpractice and malicious prosecution on 63 USLW 2633, 20 Ha. L. Weekly D583 behalf of the child against defendants, we express no opinion on the merits of the case and specifically Footnotes An intermediary represents the adoptive parents and acts as an intermediary for the child's placement. See § 63.085(1)(f), Fla.Stat. (1991). After the court has catered an order preliminarily approving the adoption, the adoptive parents may file an adoption petition. See § 63.112, FlaStat. (1991). "For minors who have been voluntarily surrendered to an intermediary ... the intermediary shall be responsible for the child...." § 63.052, FlaStat (1991). Upon entry of the preliminary ordcr, the intermediary ceases to be the child's guardian, the adoptive parents are the child's guardian, and the intermediary assumes a supervisory role. See §§ 63.122(1), 63.052(1), Fla.Stat. (1991). 2 The phrase "best interests of the child," or its equivalent, appears throughout chapter 63 of the Florida Statutes. See §§ 63.022(1), 63.022(2 )(/ ), 63.032(11), 63.062(1)(c). 63.092( l ), 63.092(3)(a)4.. 63.142(4). 63.162(1Xd) 4, Fla.Stat. (1991). 3 A similar statement of the first essential element is found in earlier Florida Supreme Court cases, see Buchanan v. Miami Herald Pub. Co., 230 So.2d 9 (Fla.1%9); Warriner v. Burdines, Inc., 93 So.2d 108 (Fla.1957); Glass v. Parrish, 51 So.2d 717 (Fla.1951); Ward v. Allen, 152 Ha. 82, I I So.2d 193 (1943); S.H. Kress & Co. v. Powell, 132 Ha. 471, 180 So. 757 (1938); Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (Fla1926), and in prior decisions of this court concerning malicious prosecution, see Doily. Usher, 514 So.2d 68 (Fla. 4th DCA 1987); Della-Donna v. Nova Univergy, Inc., 512 So.2d 1051 (Fla. Next O 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA01135048 Rushing v. Bosse, 652 So.2d 869 (1995) 63 USLW 2633, 20 Fla. L. Weekly D583 4th DCA 1987); Johnson v. City ofPompano Beach, 406 So.2d 1257 (Fla. 4th DCA 1981); Fee, Parker & Lloyd, E. v. Sullivan. 379 So.2d 412 (Fla. 4th DCA). cert. denied, 388 So.2d 1119 (Fla.1980); Burch& v. Bechert, 356 So.2d 377 (Fla. 4th DCA), cert. denied. 367 Sold 1122 (Fla.1978); Kelly v. Millers ofOrlando. Inc., 294 So.2d 704 (Fla. 4th DCA 1974); Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968); see also 24 Flalur.2d, False Imprisonment and Malicious Prosecution § 14 (Supp.I994). 4 To prevail in a malicious prosecution action, besides proving (1) the commencement or continuance of an original proceeding, the plaintiff must also prove: (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conformin to legal standards resulting to the plaintiff See Adana v. Whitfield, 290 So.2d 49, 51 (Fla.1974) a