JERROLD FREEDMAN, APPELLANT,
v.
CRABRO MOTORS, INC., A FLORIDA CORPORATION, AND J. F. FURLONG, APPELLEES
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Plaintiff Freedman appealed a directed verdict in his malicious prosecution action against an automobile dealer and its agent who initiated criminal fraud charges against him. The court affirmed, holding that Freedman could not maintain the action because the termination of the criminal proceeding was not bona fide, as it resulted from an agreement to drop charges in exchange for payment of the debt.
The court held that Freedman could not maintain a malicious prosecution action because one essential element—bona fide termination of the criminal proceeding in favor of the accused—was absent. The dismissal was not bona fide but rather was bargained for and obtained through the plaintiff's promise of payment or restitution.
“One of the elements essential to the maintenance of such an action is that there shall have been a bona fide termination of the criminal proceeding in favor of the accused.”
Establishes the fundamental requirement for a malicious prosecution action that the court applied to reject Freedman's claim.
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Join FLexlaw to unlock all legal intelligenceFreedman purchased an automobile from Crabro Motors, signing his wife's name to the installment contract without authority. Upon default, the dealer's…
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This appeal is by the plaintiff below from an adverse judgment predicated upon a directed verdict at the close of the evidence, in an action for malicious prosecution.
The plaintiff purchased an automobile from the defendant automobile dealer, Crabro Motors, Inc. In making the purchase the plaintiff signed his wife’s name to a retail installment contract calling for deferred payments aggregating $248.43. Upon a default the dealer corporation, through its agent the defendant A. F. Furlong, made an affidavit charging the plaintiff Jerrold Freedman with having defrauded the dealer of the above amount by forging his wife’s name on the contract. Freedman was arrested on a warrant issued upon that affidavit. When the matter came on for preliminary hearing before a magistrate the complaining witness failed to appear and the accused was discharged. Thereafter Freedman filed this action for malicious prosecution against the dealer corporation and Furlong.
The appellant challenges the propriety, on the record, of the direction of a verdict for the defendants. We find no error, and affirm.
One of the elements essential to the maintenance of such an action is that there shall have been a bona fide termination of the criminal proceeding in favor of the accused. Tatum Brothers Real Estate & Investment Co. v. Watson, 92 Fla. 278, 190 So. 632, 636; Community National Bank of Bal Harbour v. Burt, Fla.App.1966, 183 So.2d 731, 733.
The plaintiff can not rely on the termination of the criminal proceeding in this instance, because the failure of the complaining witness to appear and prosecute, which resulted in the dismissal of the charge against the accused, was not bona fide in that it was bargained for and obtained by the accused on his promise of payment or “restitution.” Williams v. Confidential Credit Corporation, Fla.App.1959, 114 So.2d 718, 720; Hargadine v. Sharkey, 1956, 8 Ill.App.2d 209, 131 N.E.2d 134, 142; Lloyd v. Almeda State Bank, Tex.Civ.App. 1961, 346 S.W.2d 947, 951; 54 C.J.S. Malicious Prosecution § 58; Annot. 67 A.L.R. 513.
That result is not altered by the fact that there was a conflict in the evidence as to the nature of the agreement or arrangements for the “dropping” of the criminal charge. According to the defendants an agreement was made with the plaintiff not to proceed with the prosecution if the plaintiff and his wife paid the balance owed on the automobile ; that they paid part thereof before the dismissal of the criminal proceeding; and paid the balance thereafter. The position of the plaintiff was that an agreement in that form was not made, but that in response to his proposal the defendant dealer agreed that he would “consider” dropping the charge if such payments were made. The payment of the indebtedness was undertaken prior to the time of the preliminary hearing, and the dealer did refrain from prosecution. Regardless of which of the two versions of the agreement was the one actually made and acted upon, the result was the same, that is, the dealer refrained from prosecuting in return for the offer of the plaintiff to pay the debt, followed by the making of payments as offered.
Affirmed.
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Citator
Cited By (13 total)
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Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994)…ecution. Based on the evidence presented at trial, Mancusi claims that the termination was bona fide as a matter of law and asks that we uphold the judgment entered by the trial court. The district court, relying on Freedman v. Crabro Motors, Inc., 199 So. 2d 745 (Fla. 3d DCA 1967), stated that a bona fide termination is one that indicates the innocence of the accused and is one that has not been Qbtained by the accused on a bargained-for promise of payment or restitution. Clearly, as with all of the element…
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Meyer Weissman and Anna Weissman v. K-Mart Corp., 396 So. 2d 1164 (Fla. 3d DCA 1981)…anscript in the instant case reveals that the underlying criminal proceedings were also dismissed for lack of prosecution, and that the state failed to take any action to keep the case alive. This court’s holding in Freedman v. Crabro Motors, Inc., 199 So. 2d 745 (Fla. 3d DCA 1967), also dictates the conclusion that there was a bona fide termination to the proceedings. In that case we determined that the failure of the complaining witness to appear and prosecute, resulting in the dismissal of the charge agai…
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Union OIL OF Cal. v. Watson, 468 So. 2d 349 (Fla. 3d DCA 1985)…iscayne Medical Center, Inc., 347 So. 2d 721 (Fla. 3d DCA 1977). "Bona fide” as used in this sense means that the termination was not bargained for or obtained by the accused upon a promise of payment or restitution. Freedman v. Crabro Motors, Inc., 199 So. 2d 745 (Fla. 3d DCA 1967). . A dismissal of an earlier criminal prosecution on technical grounds includes those taken because of defects in the complaint or doubts as to the jurisdiction of the offense, or where the prosecution has been thwarted by suppre…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tatum Bros. Real Est. & Inv. Co. v. Watson, 92 Fla. 278 (Fla. 1926)
- Williams v. Confidential Credit Corp., 114 So. 2d 718 (Fla. 3d DCA 1959)
- Cmty. Nat'l Bank OF BAL Harbour v. Burt, 183 So. 2d 731 (Fla. 3d DCA 1966)
- Lewis v. State, 183 So. 2d 731 (Fla. 1st DCA 1966)