VERDON

v.

SONG

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

EUGENE A. VERDON, JR.,

Appellant,

v. Case No. 5D16-3577

DANDAN SONG,

Appellee.

________________________________/

Opinion filed June 29, 2018

Appeal from the Circuit Court for Sumter County, William H. Hallman, III, Judge.

John W. Zielinski, of NeJame Law, P.A., Orlando, for Appellant.

Brandon W. Banks, and Brian M. Walsh, of Walsh Banks, PLLC, Orlando, for Appellee.

PER CURIAM.

Eugene A. Verdon, Jr., appeals from the trial court’s order dismissing his two-count second amended complaint (the “complaint”) with prejudice for failure to state a cause of action against his wife, Dandan Song.¹ Husband argues that he sufficiently pled a cause of action for both abuse of process and malicious prosecution. We agree and reverse.

2

Husband’s complaint alleged that his wife manufactured evidence and falsely accused him of domestic violence, leading to his arrest and criminal prosecution. Then, days after Husband was formally charged, Wife attempted to use Husband’s credit card, but the transaction was declined. As a result, Wife allegedly left a voicemail in which she attempted to extort Husband. In that voicemail, she said she would not feel guilty about pressing charges because Husband had restricted her use of the credit card, and that Husband should call her before she does something he “could not fix.” The complaint goes on to allege that Wife subsequently filed a sworn affidavit in support of the criminal charges that contained numerous false statements and signed a request to prosecute.

Importantly, Husband alleged that the criminal proceeding ended with a bona fide termination in his favor when the State nolle prossed the charges against him because “the likelihood of a conviction at a criminal jury trial was slight.” The complaint further alleged that the nolle prosequi “was not based on technical or procedural reasons, nor was it based on considerations other than the merits of the case.”

The trial court dismissed Husband’s complaint with prejudice, concluding that his allegations on the abuse of process action were conclusory and that he failed to allege an essential element of a malicious prosecution action as he “failed to assert there was a bona fide termination of the legal proceedings in his favor.” Standard of Review

“A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues.” Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010) (quoting The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006)).

Although abuse of process and malicious prosecution are two separate and distinct torts, they “have the common element of an improper purpose in the use of legal process, and there are many cases in which they overlap and either will lie.” Aranson v. Schroeder, 671 A. 2d 1023, 1027 (N.H. 1995) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts 898 (5th ed. 1984)). However, these torts serve different purposes as “[t]he tort of malicious prosecution is concerned with maliciously causing process to issue, whereas the tort of abuse of process is concerned with the improper use of process after it issues,” Yoder v. Adriatico, 459 So. 2d 449, 450 (Fla. 5th DCA 1984) (citations omitted), “for some wrongful and unlawful object or collateral purpose.” Gause v. First Bank of Marianna, 457 So. 2d 582, 584 (Fla. 1st DCA 1984) (citation omitted). The United States Court of Appeals for the Third Circuit has explained the intersection as follows: [I]f the defendant justifies issuance of process by untruthfully saying that the plaintiff solicited burglary and uses the process only to have him jailed, this is malicious use only [i.e. malicious prosecution]. It is not malicious abuse [i.e. abuse of process] because jailing is the purpose for which criminal process was intended. If the defendant has process issued based on the truthful statement that the plaintiff solicited burglary and then uses the threat of prosecution for purposes of extortion, this is malicious abuse only. Finally, if, as is alleged in the present case, the defendant has process served based on false statements and uses threat of prosecution for purposes of extortion, both torts will lie.

Wife also argues, without citation to authority, that the malicious prosecution cause of action2 was properly dismissed because it did not allege that “there was no chance of a conviction or exculpatory evidence existed” and that the State did not admit that Husband was innocent of the criminal charges. We again disagree. “It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a ‘bona fide termination’ in that party's favor.” Doss v. Bank of Am., N.A., 857 So. 2d 991, 994 (Fla. 5th DCA 2003) (citations omitted). This means that the prior proceeding must end in a manner that indicates the plaintiff’s innocence of the charges or allegations. Id. In other words, “suits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not ‘bona fide terminations’ and will not support a malicious prosecution suit.” Id. at 995. The complaint in this case alleged that the charges against Husband were nolle prossed “after a review of the merits” because the chance of a conviction was “slight” and that the nolle pros was not based upon any “technical or procedural reasons.” Husband

2 “In order to prevail in a malicious prosecution action, a plaintiff must establish that: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.” Alamo Rent-A- Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (citations omitted).