TACKETT PLASTICS, INC., A FLORIDA CORPORATION, AND EVERETT TACKETT, APPELLANTS,
v.
BOWSMITH, INC., A CALIFORNIA CORPORATION, APPELLEE
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Everett Tackett challenged a summary judgment dismissing his malicious prosecution action against Bowsmith, Inc. The trial court had ruled the action barred because Tackett previously elected to tax costs in the underlying suit. The appellate court reversed, holding that Florida Supreme Court precedent (Jaye v. Royal Saxon and Londono v. Turkey Creek) established that the election of remedies doctrine does not bar malicious prosecution actions when the damages sought could not have been recovered in the original action.
A private litigant may bring a malicious prosecution action for damages despite having previously elected to tax costs in an underlying action, provided the damages sought in the malicious prosecution action could not have been recovered in the original action. The election of remedies doctrine does not apply to bar such actions under Florida law.
[1] A malicious prosecution action is permissible to recover damages that could not have been recovered in the original action.
[2] The Florida Supreme Court has determined that Cate v. …
Previewing 2 of 3 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“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?”
The certified question of great public importance that the Florida Supreme Court answered in the negative, establishing that election of remedies does not bar private malicious prosecution actions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTackett brought a malicious prosecution action against Bowsmith, Inc. after successfully defending in an underlying action. Tackett had previously bee…
The full statement of facts, procedural history, and disposition for this case are member content.
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HALL, Judge.
The appellant, Everett Tackett, challenges a summary final judgment entered in favor of the appellee, Bowsmith, Inc., in this malicious prosecution action. Tackett contends the trial court erred in finding that his action for malicious prosecution was barred by his election of a previous remedy in an underlying suit. We agree with his contention in this regard and reverse.
The trial court found that, based on the authority of Cate v. Oldham, 450 So. 2d 224 (Fla.1984), a private litigant may not bring an action for malicious prosecution where that litigant has previously elected to tax costs after successfully defending an underlying criminal action. The Florida Supreme Court, however, has since determined that Cate v. Oldham does not apply in such situations. See Jaye v. Royal Saxon, Inc., 609 So. 2d 20 (Fla.1992). See also Londono v. Turkey Creek, Inc., 609 So. 2d 14 (Fla.1992).
In Jaye v. Royal Saxon, Inc., the Fourth District certified the following question as being one of great public importance:
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?
Based upon its recent decision in Londo-no v. Turkey Creek, Inc., the supreme court answered the question certified in Jaye in the negative. In Londono, the supreme court affirmed a First District holding that a plaintiff may bring a malicious prosecution action for damages, despite having previously been awarded costs in an earlier declaratory action. The Lon-dono court agreed that a malicious prosecution action under those circumstances was permissible to recover damages which could not otherwise have been recovered in the original action.
In the instant case, the complaint alleges Tackett suffered damages resulting from “harm to ... reputation, humiliation, embarrassment, mental suffering, and special damages due to losses, including arrest, physical discomfort, and injury to health.” Since those are damages which could not have been recovered in the original action pursuant to Londono, and since Cate v. Oldham does not apply to private litigants pursuant to Jaye, we must find the trial court erroneously determined the instant malicious prosecution action to be barred.
Accordingly, we reverse the trial court’s entry of summary judgment in favor of the appellee and remand the cause for further proceedings consistent with this opinion.
SCHOONOVER, A.C.J., and THREADGILL, J., concur.
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Citator
Cited By
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Khan v. United States (S.D. Fla. 2024)…tion is injury to character.” Id. (alterations added; citations omitted). Unsurprisingly, Florida courts have recognized the relevance of malicious prosecution to remedying reputational harm. See, e.g., Tackett Plastics, Inc. v. Bowsmith, Inc., 614 So. 2d 30, 31 (Fla. 2nd DCA 1993) (reversing summary judgment on a malicious prosecution claim where the plaintiff allegedly “suffered damages resulting from harm to reputation” (alteration adopted; quotation marks omitted)); Turkey Creek, Inc. v. Londono, 56…
Authorities Cited
- Javier H. Londono, M.D. v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992)
- Cate v. Oldham, 450 So. 2d 224 (Fla. 1984)
- Jaye v. Royal Saxon, Inc., 609 So. 2d 20 (Fla. 1992)