GLADYS MOLNE, APPELLANT,
v.
AUGUSTO ALFONSO AND CONSUELO ALFONSO, APPELLEES
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Gladys Molne appealed a summary judgment against her in a malicious prosecution action filed by the Alfonsos based on her filing a forgery cross-claim in a prior 1973 lawsuit. The court reversed, holding that genuine issues of material fact existed regarding her affirmative defenses of acting under counsel's advice, probable cause, and truthfulness, precluding summary judgment.
The court held that the trial court erred in granting partial summary judgment because genuine issues of material fact remained unresolved by appellant's affirmative defenses. The issues raised by those defenses were not necessarily determined by the prior adverse judgment in the 1973 action.
[1] A malicious prosecution action requires proof of six elements: commencement or continuance of a proceeding, legal causation by the defendant, bona fide termination in fav…
[2] A prior adverse judgment in a lawsuit does not necessarily resolve all issues of material fact in a subsequent malicious prosecution action arising from that lawsuit.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In a malicious prosecution action, there are six elements which must be proven: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against the plaintiff, who was the defendant in the original proceeding; (3) the bona fide termination of the proceeding in favor of the present plaintiff; (4) the absence of probable cause for institution of such proceeding; (5) the presence of malice; and (6) damages.”
Establishes the legal standard for malicious prosecution claims that must be satisfied
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1973, Molne was involved in a lawsuit with the Alfonsos regarding a deposit receipt agreement for the sale of her apartment house. Molne denied exe…
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HENDRY, Judge.
Appellant/defendant appeals from a summary final judgment on the issue of liability in a malicious prosecution action filed by appellees/plaintiffs. We reverse.
In 1973, appellant was involved in a lawsuit with appellees for specific performance. It was alleged by appellees in that suit that appellant executed a deposit receipt agreement to sell her apartment house to a prospective purchaser. Appellant denied executing the agreement and filed a cross-claim against appellees for forgery of her signature. Subsequently, by jury verdict, the forgery issue was determined in favor of appellees.
Appellees later filed a malicious prosecution suit against appellant arising out of the 1973 lawsuit. Appellant asserted by way of affirmative defenses (1) that in filing the cross claim in the prior action, she was acting under the express advice of counsel; (2) that she acted with probable cause; and (3) that she was telling the truth about the forgery. Appellees filed a motion for summary judgment on the issue of liability urging that the trial judge strike appellant’s affirmative defenses. The trial judge granted partial summary judgment and this appeal has been taken.
We hold that the court erred in entering partial summary judgment as there were clearly genuine issues of material fact left unresolved. Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
In a malicious prosecution action, there are six elements which must be proven: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against the plaintiff, who was the defendant in the original proceeding; (3) the bona fide termination of the proceeding in favor of the present plaintiff; (4) the absence of probable cause for institution of such proceeding; (5) the presence of malice; and (6) damages. Applestein v. Preston, 335 So. 2d 604 (Fla. 3d DCA 1976).
The issues of material fact raised by appellant’s affirmative defenses were not necessarily determined by the prior adverse judgment in the 1973 action. Burchell v. Bechert, 356 So. 2d 377 (Fla. 4th DCA 1978). Accordingly, partial summary final judgment is reversed and remanded for further proceedings.
Reversed and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Travelers Express, Inc. v. Myriam Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981)…riam on her claim of malicious prosecution requires establishment of all elements of the tort, one of which is the absence of probable cause, Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (Fla.1926); Molne v. Alfonson, 364 So. 2d 94 (Fla. 3d DCA 1978); while a verdict for Travelers on its counterclaims would necessarily establish the probable cause which was found to be absent in a verdict for Myriam on her malicious prosecution claim. The fact that one was rendered before the…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Applestein v. Preston, 335 So. 2d 604 (Fla. 3d DCA 1976)
- Burchell v. Bechert, 356 So. 2d 377 (Fla. 4th DCA 1978)