JOSE A. RIVERO, APPELLANT,
v.
DAVID A. HOWARD, ESQ., ETC., ET AL., APPELLEES
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The appellate court affirmed in part and reversed in part a summary judgment, holding that while the plaintiff could not establish legal malpractice for failure to file a malicious prosecution claim, genuine issues of material fact regarding probable cause precluded summary judgment on the legal malpractice claim premised on the failure to file a false arrest claim.
The court affirmed summary judgment on the legal malpractice claim related to the malicious prosecution action but reversed summary judgment on the claim related to the false arrest action, finding disputed issues of material fact regarding the reasonableness of the investigation prior to arrest.
[1] The existence of probable cause to arrest is an affirmative defense to a false arrest claim.
[2] An arresting officer is required to conduct a reasonable investigation to determine whether probable cause exists to arrest a person.
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Appellant Jose A. Rivero appeals from a final summary judgment in favor of appel-lees David A. Howard, Esq. and David A. Howard P.A. For the reasons that follow, we affirm in part and reverse in part.
Rivero filed a complaint against appel-lees for legal malpractice. In his legal malpractice complaint, Rivero alleged that he retained appellees for the purpose of filing a false arrest claim against Rivero’s former girlfriend, Mayile Salgado, and against Miami-Dade Detective Jesus Fuentes (individually), as well as a malicious prosecution claim against the Miami-Dade State Attorney’s Office and the Miami-Dade Police Department. Rivero alleged that appellees negligently failed to file suit and instead permitted the statute of limitations to expire, barring Rivero’s false arrest claims against Salgado and Fuentes and his malicious prosecution claims against the Miami-Dade State Attorney’s Office and the Miami-Dade Police Department.
Appellees answered the complaint and alleged several affirmative defenses, including, inter alia, that there was probable cause to arrest Rivero, and thus that Rive-ro could not have prevailed on a claim for false arrest against Salgado and Fuentes.
Thereafter, appellees filed a motion for summary judgment, contending that there were no disputed issues of material fact and that, because Rivero could not have prevailed in the underlying false arrest or malicious prosecution claims, Rivero as a matter of law cannot establish a cause of action for legal malpractice against appel-lees. Specifically, appellees contended that, as to the false arrest claim, there was probable cause to arrest Rivero, thus barring any viable claim for false arrest; absent a viable underlying claim, Rivero cannot establish a cause of action for legal malpractice premised on appellees’ failure to timely file a false arrest claim.1 The trial *994court agreed, and entered final summary judgment in favor of appellees.2
This appeal followed, and we review de novo the trial court’s entry of summary judgment. Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002). Summary judgment is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Id.
False arrest is “the unlawful restraint of a person against that person’s will.” Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006). The existence of probable cause to arrest is an affirmative defense to a , false arrest claim. Miami-Dade Cty. v. Asad, 78 So.3d 660, 669 (Fla. 3d DCA 2012); Mailly v. Jenne, 867 So.2d 1250, 1251 (Fla. 4th DCA 2004). An arresting officer, however, is required to conduct a reasonable investigation in order to determine whether probable cause exists to arrest a person. Harder v. Edwards, 174 So.3d 524, 534 (Fla. 4th DCA 2015); City of Clearwater v. Williamson, 938 So.2d 985, 990 (Fla. 2d DCA 2006). Moreover, “[wjhere it would appear to a ‘cautious man’ that further investigation is justified before instituting a proceeding, liability may attach for failure to do so, especially where the information is readily obtainable, or where the accused points out the sources of the information.” Harris v. Lewis State Bank, 482 So.2d 1378, 1382 (Fla. 1st DCA 1986). See also City of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2d DCA 2005).
OuT review of the record, taken in a light most favorable to Rivero as the non-moving party, demonstrates that there remain disputed issues of material fact regarding whether, prior to arresting Rivero, Detective Fuentes condúeted a reasonable investigation (and whether a reasonable investigation would have established probable cause to arrest Rivero). Because these issues of material fact remained in dispute, .the trial court erred in its determination that Rivero could not have prevailed on a claim of false arrest against Salgado or against Fuentes. We therefore reverse that portion of the summary judgment. We affirm the trial court’s summary judgment insofar as it determined that Rivero could not have prevailed on a claim of malicious prosecution against the Miami-Dade State Attorney’s Office or against the Miami-Dade Police Department.
*995Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.
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Authorities Cited (13 total)
- Art Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998)
- Harris v. The Lewis State Bank, 482 So. 2d 1378 (Fla. 1st DCA 1986)
- Gunn v. Minton, 568 U.S. 251 (U.S. 2013)
- Willingham v. The City OF Orlando, 929 So. 2d 43 (Fla. 5th DCA 2006)
- Collections v. The City OF Homestead, 816 So. 2d 1225 (Fla. 3d DCA 2002)
- Miami-Dade Cnty. & Sergeant Patricia Sedano v. Ahmed Asad, 78 So. 3d 660 (Fla. 3d DCA 2012)
- City OF ST. Petersburg v. Austrino, 898 So. 2d 955 (Fla. 2d DCA 2005)
- City OF Clearwater & Charles Esposito v. Williamson, 938 So. 2d 985 (Fla. 2d DCA 2006)
- Buenaventura Duran v. State, 929 So. 2d 43 (Fla. 3d DCA 2006)
- Harder v. Edwards, 174 So. 3d 524 (Fla. 4th DCA 2015)