Bieley v. duPont, Glore, Forgan, Inc., 74--1272
| Decision Date | 20 May 1975 |
| Docket Number | No. 74--1272,74--1272 |
| Citation | 316 So.2d 66 |
| Parties | Alfred D. BIELEY and Peggy Bieley, Appellants, v. duPONT, GLORE, FORGAN, INC., etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Dunn & Johnson, Alfred D. Bieley, Miami, for appellants.
Philip M. Gerson, Miami, for appellees.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
This is an appeal by Alfred Bieley and Peggy Bieley, defendants in the trial court 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.
from an order dismissing their counterclaim without prejudice.
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 Bieleys 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...
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Bates v. Cook, Inc.
...prosecution of this case fails because such a claim is premature at this stage of the proceedings. As the court in Bieley v. duPont, Glore, Forgan, Inc., 316 So.2d 66. (Fla.3d Dist.Ct.App.1975) There are six elements required to sustain an action for malicious prosecution, one of which is b......
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Gatto v. Publix Supermarket, Inc.
...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 ......
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Blue v. Weinstein, 79-329
...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 ......
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Weissman v. K-Mart Corp.
...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 ......
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Procedural torts
...action since the pending suit cannot be said to have terminated in favor of the counter-defendant. Bieley v. duPont, Glore, Forgan, Inc. , 316 So.2d 66, 67 (Fla. 3d DCA 1975), receded from on other grounds by Blue v. Weinstein , 381 So.2d 308 (Fla. 3d DCA 1980). See Also Blue v. Weinstein ,......