EFTA01200578.pdf

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CASE NO. 4D14-2282 BRADLEY J. EDWARDS, RECEIVED, 10/1/2015 12:59 PM, Clerk, Fourth District Court of Appeal Appellant, -vs- JEFFREY EPSTEIN, Appellee. APPELLANT'S RESPONSE TO MOTION FOR LEAVE TO FILE SUPPLEMENTAL ARGUMENT Appellant, BRADLEY J. EDWARDS, by and through undersigned counsel, hereby files this Response to the Motion for Leave to file Supplemental Argument filed by the Appellee, Jeffrey Epstein. There is no justification for supplemental briefing in this case. Epstein's motion is solely a desperate attempt to inject new issues into this appeal at the eleventh hour, which unfairly burdens not only Edwards, but also this Court. Epstein had ample opportunity to raise whatever issues he wanted in his Answer Brief, and his belated attempt to seek supplemental briefing on the eve of oral argument is obviously a recognition that the arguments in his Answer Brief can no longer sustain the judgment below. 1 EFTA01200578  As Epstein admits in his motion, his Answer Brief relied solely on the Third District's decision in Wolfe v. Forman, 128 So.3d 67 (Fla. 3d DCA 2013), to justify the trial court's decision. Now that this Court has rejected Wolfe, Epstein wants a "do over" so he can raise new issues not included in his Answer Brief. Epstein erroneously contends that this Court's decision in Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015), "dramatically changed the landscape" (Motion p.3). Actually, the landscape has been the same for hundreds of years: malicious prosecution claims and the litigation privilege have coexisted in the common law for centuries. Prior to Wolfe, no appellate court in the country had held that the litigation privilege bars malicious prosecution claims. In Fischer, this Court did not change the landscape, but rather chose to reject a blot on the landscape: the outlier decision in Wolfe. Epstein attempts to justify raising a new issue now because Edwards filed a Motion to Cancel Oral Argument based on the Fischer decision, and subsequently withdrew that motion. Epstein's motion states that undersigned withdrew the motion "only after learning that the undersigned intended to file a response arguing that affirmance is warranted despite Fisher" (Motion p.4). That is inexcusably false. Obviously, Edwards expected that Epstein would file a response arguing why affirmance is warranted even in the wake of Fischer; that is why Edwards filed the motion in the first place — to learn how Epstein intended to evade that 2 EFTA01200579 decision. Undersigned expressly told Epstein's counsel in a phone call that he was agreeable to the parties addressing the Fischer decision prior to oral argument, but he was not willing to permit the injection of new issues into the appeal. When Epstein's counsel evasively responded by claiming he did not understand what the phrase "new issues" meant, undersigned immediately realized Epstein's gambit and decided to withdraw the Motion to Cancel Oral Argument. Undeterred, Epstein then filed his Motion for Leave to file Supplemental Argument seeking to raise the probable cause issue in this appeal just a few weeks before oral argument. That is a very factually intensive issue — i.e., whether Epstein demonstrated, as a matter of law, that he had probable cause to file a civil theft claim, a RICO claim, a fraud claim, and an abuse of process claim against Edwards. As explained below, it would be extremely burdensome for Edwards, and for this Court, to have to fully brief and review this new issue at this time. Moreover, contrary to Epstein's contention, neither the probable cause issue, nor any other "tipsy coachman" issue, was somehow properly raised in his Answer Brief. Epstein's attempt to incorporate arguments from his Motion for Summary Judgment in the terse footnote 1 of the Answer Brief was improper, as the Florida Supreme Court has held on numerous occasions: The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and 3 EFTA01200580  these claims are deemed to have been waived." Duest v. Dugger, 555 So.2d 849, 852 (Ha. 1990). See also Ferrell v. State, 29 So.3d 959, 968 n.6 (Fla. 2010); Douglas v. State, 141 So.3d 107, 126 n.14 (Ha. 2012). Additionally, Florida courts have consistently held that issues mentioned only in a footnote are not properly presented to the appellate court for review. See Coolen v. State, 696 So.2d 738, 742 (Fla. 1997); R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 41 n.1 (Fla. 3d 1996). Also, raising new issues under the guise of addressing intervening case law in supplemental briefing is improper. As explained in United State v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000): Parties must submit all issues on appeal in their initial briefs. Fed. R. of App. Proc. 28(a)(5); 1 1 th Cir. R. 28-1(h). When new authority arises after a brief is filed, this circuit permits parties to submit supplemental authority on "intervening decisions or new developments" regardinilues already properly raised in the initial briefs. 1 1 th Cir. R. 28-1 . 6 (emphasis in original). Also, parties can seek permission of the court to file supplemental briefs on this new authority. 1 1 th Cir. R. 28-1 . 5. But parties cannot properly raise new issues at supplemental briefing, even if the issues arise based on the intervening decisions or new developments cited in the supplemental authority. See McGinnis v. Ingram Equipment Co., Inc., 918 F.2d 1491, 1495-96 (11th Cir.1990) (distinguishing between "new arguments and issues not presented until a late stage of the proceedings" and "new law that could be applied to arguments already developed" and noting that waiver usually bars the former situation). Therefore, permitting supplemental briefing which injects entirely new issues, as opposed to merely addressing the Fischer decision, would be improper at 4 EFTA01200581 this late stage of the appeal. It is an unfair burden to this Court, which is no doubt already preparing for the oral argument in a few weeks; and it is unfair to Edwards, who fully briefed the case over six months ago and limited the record based on the reasonably anticipated issues. If this Court is inclined to grant the Motion for Leave to file Supplemental Argument, Edwards would have to supplement the record with hundreds of pages of documents in order to provide the appropriate factual predicate for this Court's review. Additionally, Edwards' supplemental brief would have to address (at least) the following issues in order to present all the numerous reasons why the trial judge properly denied Epstein's Motion for Summary Judgment as to the probable cause issue: 1) Epstein was not entitled to summary judgment on the probable cause issue because he had repeatedly asserted his Fifth Amendment privilege to virtually every substantive question in his two depositions and multiple discovery requests, including those which related to the probable cause issue; 2) Epstein cannot be permitted to rely on Epstein's affidavit in support of his Motion for Summary Judgment because during the four years of litigation he had refused to provide substantive testimony based on his assertion of the Fifth Amendment privilege, despite Edwards' repeated efforts to obtain that testimony from him; 3) Epstein's repeated assertion of the Fifth Amendment privilege justified adverse inferences against him which, by definition, preclude a summary judgment; 4) Case law holds that when the facts relied on to show probable cause are in dispute, their existence is a question of fact for 5 EFTA01200582  determination by the jury; and here the "facts" relied upon by Epstein to show probable cause as to Edwards are in dispute, i.e., whether Edwards had any involvement in Rothstein's Ponzi scheme; 5) Epstein's motion did not satisfy the standard for summary judgment on the issue of probable cause, i.e., that as a matter of law there was a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense at which he is charged; 6) There is a question of fact regarding Epstein's good faith regarding his decision to file suit against Edwards, and the Florida Supreme Court has held that good faith is always an essential element to be considered on the question of probable cause; 7) There are, at a minimum, questions of fact whether under the circumstances of this case a cautious man would investigate further before initiating the legal action, which, in itself, can defeat a defendant's assertion of having probable cause to file the legal proceedings. If this Court decides that supplemental briefing is appropriate, undersigned can file a supplemental brief, and any appropriate motion to supplement the record within three business days of this Court's ruling. Nonetheless, Edwards requests this Court deny the Motion for Leave to file Supplemental Argument and to permit this case to be heard at oral argument based on the briefs and limited issues previously submitted. 6 EFTA01200583  I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list, by email, on October 1, 2015. William B. King, Esq. SEARCY DENNY SCAROLA BARNHART & SHIPLEY, E. 2139 Palm Beach Lakes Blvd. We, t Palm Beach FL 33409 and BURLINGTON & ROCKENBACH, ■. Courthouse Commons/Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 (561) 721-0400 Attorneys for Edwards By: /s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. 285862 /kbt 7 EFTA01200584  SERVICE LIST Edwards v. Epstein Case No. 4D14-2282 John Beranek, Esq. Jack Goldberger, Esq. SUSLEY & MCMULLEN ATTERBURY GOLDBERGER Box 391 & WEISS, II Tallahassee, FL 32302 250 So. Australian Ave., Ste. 1400 850)425-5310 West Palm Beach, FL Attorneys for Jeffrey Epstein Attorneys for Jeffrey Epstein Fred Haddad, Esq Tonja Haddad Coltun, Esq. FRED HADDAD, M. TONJA HADDAD, M. 1 Financial Plaza, Ste. 2612 315 SE 7th Street., Ste. 301 Fort Lauderdale, FL 33301 Fort Lauderdale, FL 33301 954 467-6767 954)467-1223 Attorneys for Jeffrey Epstein Attorneys for Jeffrey Epstein Mark Nurik, Esq. Bradley J. Edwards, Esq. LAW OFFICES OF MARC S. NURIK FARMER, JAFFE, WEISSING, 1 E. Broward Blvd., Ste. 700 EDWARDS, FISTOS & LEHRMAN, M. Ft. Lauderdale, FL 33301 425 N. Andrews Ave., Ste. 2 iiiiiiiS Fort Lauderdale, FL 33301 (954)524-2820 Attorneys for Scott Rothstein Attorneys for Defendant Edwards W. Chester Brewer, Jr., Esq. W. CHESTER BREWER, JR., ■. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 561)655-4777 Attorneys for Jeffrey Epstein 8 EFTA01200585