ALFRED D. BIELEY AND PEGGY BIELEY, APPELLANTS,
v.
DUPONT, GLORE, FORGAN, INC., ETC., ET AL., APPELLEES
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The Bieleys appealed a trial court order dismissing their counterclaim for defamation, invasion of privacy, and malicious prosecution without prejudice. The court held that the counterclaim was permissive rather than compulsory and properly dismissed, as it could not be maintained in a pending action and required prior resolution of the declaratory relief action.
The counterclaim is permissive rather than compulsory and was properly dismissed without prejudice. Although much of the relief sought in the counterclaim arises from the same transaction as the plaintiff's complaint, the counterclaim cannot be maintained in the pending action because it requires prior determination of rights in the declaratory decree action and cannot satisfy the termination requirement for malicious prosecution.
[1] A counterclaim for malicious prosecution or abuse of process is not maintainable in a pending action because the claimed abuse is the pending suit itself, which has not y…
[2] A counterclaim is permissive rather than compulsory when the issues it raises require a prior determination of rights in a separate declaratory decree action.
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Join FLexlaw to unlock all legal intelligence“a counterclaim for malicious prosecution or abuse or process cannot be maintained in a pending action since the abuse claimed is the pending suit which cannot be said to have terminated in favor of the counter-claimant”
Establishes the key principle that malicious prosecution counterclaims are premature during a pending action because termination is an essential element
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Join FLexlaw to unlock all legal intelligenceduPont, Glore, Forgan, Inc. filed a complaint for declaratory relief against the Bieleys regarding a bond allegedly delivered to them which they claim…
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PER CURIAM.
This is an appeal by Alfred Bieley and Peggy Bieley, defendants in the trial court, from an order dismissing their counterclaim without prejudice.
The plaintiff, duPont, Glore, Forgan, Inc., filed a complaint for declaratory relief naming the Bieleys as defendants seeking a declaration of rights involving the property interest of the plaintiff and the defendants in a certain bond allegedly delivered to the defendants, which defendants allegedly never ordered, requested or received. The complaint does not seek money damages. In response, the Bieleys filed an answer and counterclaim for defamation, invasion of privacy, impairment of credit, malicious prosecution and abuse of process. When the plaintiff moved for summary judgment on the counterclaim, the court, on its own motion, determined that the counterclaim was premature and it was • dismissed without prejudice to the Bieleys to file such independent causes as they deem appropriate.
The sole question presented before this court on appeal is whether the counterclaim is compulsory and should be disposed of at the same time as the complaint for declaratory decree. We hold that it is permissive rather than compulsory, and that the trial court properly dismissed the counterclaim, allowing the Bie-leys to proceed by separate suit if they so desire. Although much of the relief sought in the counterclaim grows out of the transaction, subject of the plaintiff’s complaint, the issues raised in the counterclaim require a prior determination of the parties’ rights in the declaratory decree action. There are six elements required to sustain an action for malicious prosecution, one of which is bona fide termination of the prior action in favor of the plaintiff in the malicious prosecution action. If any of the elements is lacking, the result is fatal to the action. Tatum Brothers Real Estate & Investment Company v. Watson, 1926, 92 Fla. 278, 109 So. 623, 626. A counterclaim for malicious prosecution or abuse or process cannot be maintained in a pending action since the abuse claimed is the pending suit which cannot be said to have terminated in favor of the counter-claimant. American Salvage & Jobbing Company, Inc. v. Salomon, Fla.App.1974, 295 So. 2d 710, 712.
Accordingly, the order on appeal is affirmed.
PER CURIAM.
On consideration of appellants’ petition for rehearing, ouP opinion is amended to affirm dismissal of only that part of the counterclaim which pertains to any cause of action therein for abuse of process or malicious prosecution. The order of dismissal with leave to file an independent cause of action is reversed as to the remaining allegations which constitute libel, invasion of privacy or other stated causes of action because, if and when properly pleaded, the allegations constitute a compulsory counterclaim.
It is so ordered.
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Meyer Weissman and Anna Weissman v. K-Mart Corp., 396 So. 2d 1164 (Fla. 3d DCA 1981)…he burden of proving all six elements of their malicious prosecution claim; a failure on any one element will destroy their cause of action. Gatto v. Publix Supermarket, Inc., 387 So. 2d 377 (Fla. 3d DCA 1980); Bieley v. duPont, Glore, Forgan, Inc., 316 So. 2d 66 (Fla. 3d DCA 1975). For the reasons stated and upon the authorities cited, the summary judgment as to officer Barnett and Dade County is affirmed; the summary judgment entered in favor of appellees Alvarez and K-Mart is reversed and remanded for pr…
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Blue v. Weinstein, 381 So. 2d 308 (Fla. 3d DCA 1980)…be brought as an independent action at the termination of the main action. The trial court undoubtedly relied on these cases in dismissing without prejudice the defendants’ abuse of process counterclaim herein. Bieley v. duPont, Glore, Forgan, Inc., 316 So. 2d 66 (Fla. 3d DCA 1975); American Salvage & Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974); Marcoux v. Davis, 230 So. 2d 485 (Fla. 3d DCA 1970). This court has also held, in conflict with the above line of cases, that termination of the…1 / 2
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Gatto v. Publix Supermarket, Inc., 387 So. 2d 377 (Fla. 3d DCA 1980)…is upon this ground that Publix and Stepp argue for affirmance on appeal. Of course, if Gatto failed to prove this or any essential element of his malicious prosecution action, it would be fatal to his action. Bieley v. duPont, Glore, Forgan, Inc., 316 So. 2d 66 (Fla. 3d DCA 1975). The evidence in the present case reveals that the sworn complaint (an arrest or “A” form) executed on January 20, 1978, by the arresting officer and countersigned by Harold Stepp was determined by the State Attorney's Office to…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tatum Bros. Real Est. & Inv. Co. v. Watson, 92 Fla. 278 (Fla. 1926)
- Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974)