MILDRED R. JAYE, APPELLANT,
v.
ROYAL SAXON, INC., APPELLEE
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In this malicious prosecution appeal, the Fourth District affirmed summary judgment for the defendant, holding that a plaintiff who successfully taxed costs and fees in the underlying action is barred from bringing a subsequent malicious prosecution claim based on those same losses. The court certified to the Florida Supreme Court the question of whether this common law rule applies to private litigants.
The court held that the plaintiff is barred from bringing a malicious prosecution action after electing to tax costs and fees in the underlying action. Following precedent from Cypher v. Segal and Cate v. Oldham, the court affirmed the summary judgment for the defendant, applying the common law rule against double recovery.
[1] A plaintiff in a malicious prosecution action who has previously taxed fees and costs after successfully defending the underlying action is barred by that election from s…
[2] The common law rule, as interpreted in Florida, precludes a successful defendant from both taxing costs and fees in the original action and suing for malicious prosecutio…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At common law successful defendants could either tax costs and fees in the original action, or they could sue for malicious prosecution upon the basis of those losses; they could not do both.”
Establishes the controlling common law rule against double recovery that bars the plaintiff's malicious prosecution claim
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMildred Jaye brought a malicious prosecution action against Royal Saxon, Inc. In the underlying action that Jaye lost, she had successfully taxed cost…
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STONE, Judge.
This is an appeal from a final summary judgment for the defendant in an action for malicious prosecution. The trial court, properly, applied this court’s opinion in Cypher v. Segal, 501 So. 2d 112 (Fla. 4th DCA 1987), in holding that the plaintiff in a malicious prosecution action, who has previously taxed fees and costs in a successfully defended underlying action, is barred by that election from seeking additional damages.
In Cypher, this court determined that this language in Cate v. Oldham, 450 So. 2d 224 (Fla.1984) was controlling:
At common law successful defendants could either tax costs and fees in the original action, or they could sue for malicious prosecution upon the basis of those losses; they could not do both. Parker v. Langley, 93 Eng.Rep. at 297. There being no Florida decision or statute to the contrary, the common law rule precludes such an attempt at double recovery here.
Cypher at 114.
Although both Cate and Cypher involved acts of public officials, those cases were deemed controlling in River Bend Marine, Inc. v. Sailing Assoc., Inc., 539 So. 2d 507 (Fla. 4th DCA 1989), involving only private parties. We note that the First District, in Turkey Creek, Inc. v. Londono, 567 So. 2d 943 (Fla. 1st DCA 1990), disagreed with this court’s interpretation of the Cate language. Following Cypher, we affirm the judgment. However, as we deem the issue to be of great public importance we certify this question to the supreme court:
WHETHER CATE V. OLDHAM APPLIES TO PRIVATE LITIGANTS, TO BAR A SUBSEQUENT ACTION FOR MALICIOUS PROSECUTION WHERE THE PLAINTIFF HAS PREVIOUSLY ELECTED TO TAX COSTS AND/OR FEES AFTER SUCCESSFULLY DEFENDING THE UNDERLYING ACTION?
DELL, J., concurs.
WARNER, J., concurs specially with opinion.
WARNER, Judge,
concurring specially.
I concur because of the precedent of Cypher v. Segal and River Bend Marine, Inc. v. Sailing Assoc., Inc. cited by the majority, even though I disagree with Cypher. I fully concur in the certification of the question to the Supreme Court.
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Citator
Cited By
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Jaye v. Royal Saxon, Inc., 609 So. 2d 20 (Fla. 1992)…HARDING, Justice. We have for review Jaye v. Royal Saxon, Inc., 573 So. 2d 425 (Fla. 4th DCA 1991), in which The Fourth District Court of Appeal certified the following question as one of great public importance: WHETHER CATE V OLDHAM [450 So. 2d 224 (Fla.1984) ] APPLIES TO PRIVATE LITIGANTS, TO BAR A SUBSEQUENT ACTION FOR M…
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August Urbanek and Sidney Kohl v. The 18TH Hole AT Inverrary Condo. Ass'n, Inc., 582 So. 2d 154 (Fla. 4th DCA 1991)…e trial court correctly relied on Cypher v. Segal, 501 So. 2d 112 (Fla. 4th DCA 1987), and granted summary judgment for the appel-lees. We affirm. This court recently addressed the precise issue presented in this case in Jaye v. Royal Saxon, Inc., 573 So. 2d 425 (Fla. 4th DCA), rev. pending, (Fla. Mar. 1, 1991) (No. 77,570). The final judgment was affirmed in Jaye because of Cypher and River Bend Marine, Inc. v. Sailing Assocs., Inc., 539 So. 2d 507 (Fla. 4th DCA 1989). The foundation of both Cypher and Riv…
Authorities Cited
- Cate v. Oldham, 450 So. 2d 224 (Fla. 1984)
- Turkey Creek, Inc. v. Javier H. Londono, M.D., 567 So. 2d 943 (Fla. 1st DCA 1990)
- Cypher v. Segal, 501 So. 2d 112 (Fla. 4th DCA 1987)
- River Bend Marine, Inc. v. Sailing Assocs., Inc., 539 So. 2d 507 (Fla. 4th DCA 1989)
- Yoram LOW v. Powerline Serv., Inc., 539 So. 2d 507 (Fla. 4th DCA 1989)