FRED R. GANGELHOFF, APPELLANT,
v.
LOKEY MOTORS COMPANY, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 2d DCA | 1972-12-08
No. 72-87
PIERCE, C. J., and HOBSON, J., concur.
270 So. 2d 58 Florida District Court of Appeal, Second District (1972) Positive Treatment
Cited by 5 cases

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Holding

The court held that a plaintiff need only generally aver malice in a malicious prosecution claim, not plead specific facts demonstrating it.

Facts & Procedural History

Appellant sued Lokey Motors for malicious prosecution, alleging proceedings were instituted without probable cause and with malice. The trial court di…

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Topics
Pleading Requirements Malice Malicious Prosecution Probable Cause

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Opinion of the Court
LILES, Judge.

LILES, Judge.

Appellant brought suit against Lokey Motors Company, Inc., a Florida corporation, and alleged among other things that Lokey Motors had instituted criminal proceedings against him without probable cause and with malice.

The trial court granted defendant’s motion to dismiss for the reason that the element of malice was not sufficiently pleaded. Appellant assigns as error the court’s dismissal of his amended complaint. We reverse.

*59The complaint alleged among other things the following: The prosecution, by the Defendant against the Plaintiff, was without probable cause and was commenced and continued by said Defendant from malice towards Plaintiff; that certain acts were committed by the defendant and these actions were taken with actual malice.

We believe Rule 1.120(b), R.C.P. 30 F.S.A., correctly recites what must be pleaded in order to constitute a cause of action. The rule says:

“ . . . Malice, intent, knowledge, mental attitude and other condition of mind . . . may be averred generally” (Emphasis added.)

Appellant recites in his brief that this rule has never been construed in Florida; but directs this court’s attention to the application of the Federal rule which is identical to our Florida rule. We have the authority under Delta Rent-A-Car v. Rihl, Fla.App.1969, 218 So.2d 467, to decide this case pursuant to the case law enunciated in the Federal decisions. We rely on Belli v. Orlando Daily Newspapers, Inc., 5 Cir., 1967, 389 F.2d 579, and Seaboard Oil Co. v. Cunningham, 5 Cir. 1931, 51 F.2d 321.

The plaintiff may have difficulty in proving malice toward him by the defendant but he has made sufficient averments to afford him the opportunity.

Reversed and remanded for action consistent with this opinion.

PIERCE, C. J., and HOBSON, J., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Robert v. Carida, 427 So. 2d 803 (Fla. 4th DCA 1983)
    …e medical staff or a committee thereof. . Florida Rule of Civil Procedure 1.120(b), provides in part: Malice, intent, knowledge, mental attitude and other condition of mind of a person may be averred generally. See Gangelhoff v. Lokey Motors Co., 270 So. 2d 58 (Fla. 2d 1972). See also 5 C. Wright & A. Miller, Federal Practice and Procedure § 1301, at 426 (1969), for a discussion of the identical language in the corresponding federal rule of civil procedure. . Section 395.065(2) expressly concerns itself…
  • Kist v. Sgt. John O. Hubbard, 93 So. 3d 1100 (Fla. 5th DCA 2012)
    …d with malice. We disagree. Rule 1.120(b) of the Florida Rules of Civil Procedure provides that “[mjalice, intent, knowledge, mental attitude, and other conditions of mind of a person may be averred generally.” In Gangelhoff v. Lokey Motors Company, 270 So. 2d 58 (Fla. 2d DCA 1972), the plaintiff sued for malicious prosecution. The complaint alleged that the “prosecution ... was commenced ... from malice towards the plaintiff; that certain acts were committed by the [defendant] and these actions were taken w…
  • Mendez v. Alvarez, 390 So. 3d 251 (Fla. 3d DCA 2024)
    …malice. We disagree. Rule 1.120(b) of the Florida Rules of Civil Procedure provides that ‘[m]alice, intent, knowledge, mental attitude, and 7 other conditions of mind of a person may be averred generally.’”); Gangelhoff v. Lokey Motors Co., Inc., 270 So. 2d 58, 59 (Fla. 2d DCA 1972) (“We believe Rule 1.120(b), R.C.P. 30 F.S.A., correctly recites what must be pleaded in order to constitute a cause of action. . . . The plaintiff may have difficulty in proving malice toward him by the defendant but he has m…

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