The Malicious Prosecution of David Johnson Series
WITH MALICE AFORETHOUGHT
David Arthur Walters
Updated June 18, 2012
A crucial petition for a writ of certiorari was filed on March 21, 2012, with Florida’s Fourth District Court of Appeal, in a case of significant interest to the public because it bears on the ability of lawyers to claim the protection of “litigation privilege” to absolutely abuse the legal process to the disadvantage of their opponents as judges and bar regulators stand by and do little or nothing to regulate the vicious free-for-all.
The petition was filed by the defendants in David and Jane Johnson’s suit against Allen and Melissa Libow and the Libow law firm. The Libows have not been faring well in the lower court, where their motions for summary judgment running into hundreds of pages including exhibits have failed.
The Johnsons sued the Libows for maliciously initiating and prosecuting a defamation suit against them in retaliation for Mr. Johnson’s filing of an absolutely privileged complaint, submitted on his family stationery, against Allen Libow with the Florida Bar. Although Mrs. Johnson did not sign the complaint letter, she was named because, Mr. Libow said, the plaintiffs wanted to be legally able to seize her property no matter how it was held. Mr. Johnson was naturally fighting mad of the fact that she was forced into the fray. On May 11, 2006, thirty-eight of the plaintiffs’ forty-one counts of defamation against both Jane and David Johnson were dismissed by Circuit Court Judge Elizabeth Mass upon a motion to dismiss plaintiff's 5th amended complaint. At that juncture, the Johnsons had already expended in excess of $100,000 to defend. That left three surviving counts against Mr. Johnson alone, because they appertained to communications that were not on the family letterhead, which would also be dismissed. The issue was tortuously prolonged by the plaintiffs’ appeals. The dismissals were affirmed by the 4th District Court of Appeals. The financial burden then exceeded $250,000 not to mention the emotional torment suffered all along by the “winners.”
Mr. Johnson accused the Florida Bar of “sitting on its bureaucratic ass” while over a half-dozen attorneys associated with the Libow firm, along with legal mastermind Arthur W. Tifford, Mrs. Libow’s affluent father, tormented his family in direct contradiction to Florida common law that renders persons who complain to governmental authorities immune from retaliatory prosecution even though their complaints may be unfounded.
The Johnson’s filed their complaint for malicious prosecution, conspiracy, and abuse of process against the Libows on January 24, 2011, with the Fifteenth Judicial Circuit Court of Palm Beach County. Malicious prosecution is an abuse of the legal process because it is the initiation of legal action without probable cause and with an ulterior or improper motive. Malice or ill will may have been expressed or it may be implied from the lack of probable cause to commence the action. The prosecution must fail for it to be malicious, therefore it is said that the underlying suit must terminate in the defendant’s favor in order for a malicious prosecution suit to be brought against the plaintiff.
But jurists drew a technical distinction between malicious prosecution and abuse of process and made them two separate causes. An abuse of process may be malicious but it is one that occurs after an action is commenced with probable cause; during the course of that proper action some improper act is committed, improper inasmuch as it is unrelated to or outside of the context of the underlying litigation. Therefore a successful suit for abuse of process does not require proof of malice, lack of probable cause, or successful termination. It requires impropriety. Whether the abuse is unrelated to the proceeding or not is a ticklish question, leaving the courts to exercise minds over such cases as the one in which a hotel owner who had sued an occupant for rent threatened to have a warrant issued for her arrest for disorderly conduct if she did not pay the bill; she paid and sued him for abuse of process.
Judges interested in the finality of judicial decisions naturally grew weary of dealing with abuse of process suits. Legal battles would never end if the parties were allowed to slug it out ad infinitum, asserting that the other side did not play by the rules as they would have them interpreted. Furthermore, the parties to lawsuits and their attorneys and others involved in the cases would not be willing to speak freely or do anything at all if they could be sued for abuse of process. Litigants and their champions must be privileged to act without fear of retaliation or justice would not be served. Therefore we are blessed with what is called the litigation privilege.
But that does not mean that there are no holds barred in court, at least not in theory. The courts have rules and means to punish misbehaving parties and their attorneys, and attorneys can always be referred to the appropriate regulatory agency for further discipline—the Florida Bar has a rule against abuse of process, the violation of which is supposed to result in discipline. Therefore a judicial attitude has developed that abuse of process suits are barred by the litigation privilege, and that the traditional forms of abuse such as defaming an opponent in court are absolutely privileged. That attitude has resulted in some laxity on the part of bench and bar. Of course privileges are bound to be abused in the heat of battle, especially by attorneys who get away with abusive methods and are called ‘Rambo lawyers.’
Arthur W. Tifford is a clever, crusty and crafty lawyer who began his career as a special-court-martial judge in Vietnam during the Vietnam War. He refers capitally to himself on his website as the “Judge Advocate General,” and advertises there his biggest wins, including default judgments against nearly bankrupt fraudulent enterprises, and a major settlement of a personal injury case. He served the public in Miami as an assistant district attorney after a brief stint as instructor at the Naval Academy, and went on to defend major drug traffickers before taking up white collar criminal cases when the drug money dried up as the courts became stringent in their definition of civil rights for drug traffickers. He became a well known public figure when he co-starred in the popular documentary, Square Groupers – The Godfathers of Ganja.
In the Johnson v. Libow case, his main defense on behalf of his son-and-law and daughter and the Libow law firm is that they were engaged in a lawsuit in small claims court against the Johnsons for $1,621 in legal fees, therefore bringing the defamation suit against them as a counter claim was absolutely privileged by the so-called litigation privilege—the defamation suit was naturally severed from the small claim case and was removed to the circuit court.
Mr. Johnson’s allegedly defamatory remarks in his Bar complaint related to his belief that Mr. Libow was trying to shake him down for $100,000 to settle the small claim, or else. Infuriated, he got the ‘or else,’ in part for complaining to the Florida Bar, for example, that “Mr. Libow…knows that Jessie James used a horse and a six-gun to carry out his robberies. Mr. Libow uses a computer and the United States Mail to carry out his.”
Mr. Tifford’s first line of defense to the malicious prosecution claim against his relatives and their law business is that the prosecution was subject to the litigation privilege and that the privilege is absolute, meaning that it is privileged no matter how abusive and malicious it might have been. All is fair in love and war.
Circuit Court Judge Meenu Sasser shot Mr. Tifford’s argument down with a denial of his motion for a summary judgment. We are not surprised, because it is plain to see from logic and law that malicious prosecution is the one sort of abuse of process excepted from the litigation privilege. Other abuses can hypothetically be remedied during the course of litigation by judges and bar regulators, but there are no remedies for malicious prosecution until the action is terminated in the defendant’s favor.
There is an analogy here with false arrest—actions for defamation per se for being falsely accused of a crime, and for malicious prosecution of a civil action, arose from false arrest. A sheriff may hate someone he arrests, express considerable malice towards him, and even have some doubts about his or her guilt, but if the accused is tried and proven guilty and sent off to prison, a suit for malicious prosecution against the sheriff will fail. In other words, for a malicious prosecution suit to succeed, the suit on which it is based must have been determined in the defendant’s favor. In this we see at least part of the “infinite wisdom” of the courts in distinguishing malicious prosecution from other abuses of process, and excepting it from the litigation privilege.
But Mr. Tifford will not cotton to this ineluctable logic, which happens to be consistent with public policy inasmuch as it protects the public from the abuse of power it might suffer at the hands of officers of the court like him. In an attempt to put an end to the case forthwith, he petitioned the appellate court for a writ of certiorari quashing the lower court’s denial of the motion for summary judgment. It seems that either Mr. Tifford is confused by the law, or that he is twisting it to his own ends. Although we as non-lawyers might fall for the confusion of apples and oranges in calling them fruits, it would appear that reasonable lawyers would see right through his petition for a writ and hold him responsible for the expenses of responding to it. Still, we fear that the appellate court might itself be confused into making bad new law, especially if prejudiced by Mr. Tifford’s Preliminary Statement to the appellate court, explicitly referring to Mr. Johnson as a “vexatious litigator” who called the Florida Bar a “eunuch.”
‘PRELIMINARY STATEMENT: Petitioners, defendants below, seek recognition of their absolute immunity for compulsory counterclaims filed in a pending judicial proceeding commenced against them by the Respondents. Since 2003, Respondents/plaintiffs below, David Raymond Johnson and Jane Johnson (collectively, "the Johnsons"), have continuously sued professionals whom they engaged to perform services on their behalf. They have sued their former real estate agent, their former attorneys and, regrettably, a non-lawyer. Their vexatious nature has also extended to at least one judicial officer presiding over one of the cases in which they were parties-litigant. Further, during the litigation which the Johnsons assert gave rise to their sole surviving claim in the instant suit, the Johnsons, collectively, filed three Florida Bar complaints against A. Libow and additional Bar complaints against A. Libow's attorney, all of which were rejected by the Florida Bar. Moreover, during the disposition of the Johnsons' first specious Bar complaint against A. Libow, Respondent, David Raymond Johnson accused Florida Bar counsel of being “eunuchs.”’
The public record of this case demonstrates that Mr. Tifford resorts to the common Rambo-litigator stratagem of so-called reversal, accusing the opponent of committing the acts he has himself committed or was engaged in at the time, thereby projecting his own faults and/or those of his client onto his victim, and excusing his own behavior as compulsory as if his arm were being twisted behind his back by the law to engage in it. Another Rambo-strategy is to ignore, twist, and fabricate facts, rewriting the history of a case as one goes along while burying the court in so much paper that it is virtually impossible to sort everything out unless one wants to expend one’s entire life doing so.
The non-lawyer real estate agent whom Johnson “regrettably” sued was not Johnson’s real estate agent, but was the real estate agent who interfered in a real estate transaction Johnson was attempting to close. He referred the matter to an attorney working for the Libow law firm, and the Libow attorney advised him to file suit, which is what law firms do. Indeed, Mr. Johnson averred that the Libow firm had not only sued on behalf of its clients, but had regrettably sued over eighty of its own clients and several of its own partners in order to shake them down for settlements.
May heaven forbid professionals from being sued by non-professionals, especially if those professionals are licensed to practice law and the suit is successful! The former attorneys sued by Mr. Johnson include, of course, the Libow law firm, which he, by way of counterclaim in the small debt court, accused of violating the Fair Debt Collection Act. And Mr. Johnson had to sue the attorney who won the defamation case for him because that attorney regrettably botched the offer-and-settlement agreement for fees and costs. The mistake in wording of the allocation of settlements was one that gives even pettifoggers nightmares over its sheer pettiness, but Johnson was not about to suffer the consequences, and his attorney was induced to settle for an undisclosed amount. Naturally, it would not be sinful for the Tifford-Libow family to win their lawsuits.
Technically speaking, a “vexatious litigator” is someone who, in bad faith and without probable cause, brings a legal action or institutes a proceeding to harass an opponent. In brief, a vexatious litigator is a malicious litigator who may be sued for malicious prosecution if the necessary precedents exist.
Throughout the underlying suits brought by the Libows against the Johnsons—one for the $1,621 fee allegedly owed, the other for reporting Mr. Libow to the Florida Bar—Mr. Tifford, apparently taking advantage of his understanding of the litigation privilege, defamed Mr. Johnson as a sort of litigation terrorist with a criminal record, although Mr. Johnson had merely exercised his legal rights and had never been arrested or convicted for felonious conduct. In other words, Mr. Johnson was a terrorist and he was a freedom fighter. Now if this were a case of the pot calling the kettle black, which it is not, the pot had the unfair advantage as an officer of the court.
The public record shows that Mr. Tifford’s son-and-law, Mr. Libow, had demanded $100,000 to settle the original $1,621 fee claim. He compared Mr. Johnson with the murderer of the Libow’s babysitter and her two daughters. He filed a police report against Mr. Johnson for which no action was taken due to lack of reasonable suspicion not to mention probable cause. And he had, among other things, made an explicit reference to the movie Cape Fear, an email communication that Mr. Johnson construed as an implied death threat. Yet when Mr. Johnson would point out that Mr. Tifford had in fact himself been tried by a jury and convicted of a felony, Mr. Tifford would express outrage and avoid the fact as if it were not true. For example, during an ex parte hearing he managed to connive before Judge Donald W. Hafele, the small claims court judge he complained Mr. Johnson had complained about, he inserted expressly prohibited circuit court discovery onto the small claim court record and said:
“We've confronted this Circuit Court action almost to a disgusting level. And I would use that word even if he was standing here facing me during this hearing. What he does is attacks attorneys. He even attacked me three times during the first two sessions of his deposition, calling me a—I'll use the abbreviation—AH, calling me a convicted felon, accusing me of being in prison and having a cell mate, and on and on. I could only say that when I retired my commission from the United States Marine Corp. I'm a Reserve, as a colonel, I didn't think anybody at headquarters Marine Corp., during my 30 years with the Corp., ever thought I was in prison and had a cell mate with a cell number, but that's another story for another day.”
As for Judge Hafele, we are loath to criticize a judge so honorable that convicts praised him for their sentences, and we dismiss the politically motivated allegation against him by Tea Party enthusiasts that he was appointed to the Circuit Court by Governor Crist to fix the Everglades Land Deal case. But we shall criticize elsewhere, and in detail, the Rambo-litigation behavior of Mr. Tifford, behavior that apparently prejudiced His Honor after the Zip Code Game was played to get the small claim case assigned to him and dragged out after it was set for trial by a judge who had ruled in Johnson’s favor. Judge Hafele, who said he had never seen the case before, took Mr. Tifford’s word for everything in the Johnsons’ absence—they did not receive notice of the hearing—and agreed that Mr. Johnson had perpetrated a fraud on the court by secretly consulting with a bevy of lawyers while representing himself in the small claim case; furthermore, said Hafele:
“I want to make sure that I did mention on the record, I find that the Defendants have engaged in an apparent pattern of willful and contenatious (sic) conduct that has been designed to frustrate the Plaintiffs and their counsel in their efforts to try to proceed and resolve this Small Claims case. Again, the sheer volume, the number of attempts made, and the ultimate resolution, as condensed in the motion that was made today, with respect to sanctions, are efforts made after long and difficult proceedings that have been peppered with extensive derogatory statements that are contained not only in the deposition transcripts, but also in the pleadings themselves, that have been primarily engineered by the Defendants herein.”
Mr. Tifford, who is contentious by profession if not “contenatious” by nature, practically ran over to the circuit court to inform it that Judge Hafele, who also handled criminal cases in the county court, had declared the Johnsons to be fraudsters. That last-ditch tactic would cost the Johnson’s $30,000 more in the defamation case in circuit court, where the Libows had already had 38 of the defamation counts dismissed, leaving 3 counts, which would be dismissed sometime after this further torment.
Now we can only hope that the appellate court is not swayed from the rational consideration of the common law by Mr. Tifford’s characteristic character assassination, for if it agrees that malicious prosecution is protected by litigation privilege, its doom will curse justice.
Plaintiffs’ Motion for Writ of Certiorari was denied on the merits May 9, 2012
Plaintiffs’ May 23, 2012, Motion for Rehearing En Banc was denied June 18, 2012