Burns v. GCC Beverages, Inc.

• Decision Date: 24 December 1986
• Docket Number: No. 66999,66999
• Citation: 502 So.2d 1217,12 Fla. L. Weekly 17
• Parties: 12 Fla. L. Weekly 17 James R. BURNS, Petitioner, v. GCC BEVERAGES, INC., etc., Respondent.
• Court: Florida Supreme Court

Page 1217

502 So.2d 1217

12 Fla. L. Weekly 17

James R. BURNS, Petitioner, v. GCC BEVERAGES, INC., etc., Respondent.

No. 66999.

Supreme Court of Florida.

Dec. 24, 1986.

Rehearing Denied March 20, 1987.

Gerald S. Bettman and Jack W. Bettman, Jacksonville, for petitioner.

Floyd L. Matthews, Jr. and Jerry J. Waxman of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for respondent.

BARKETT, Justice.

We have for review Burns v. GCC Beverages, Inc., 469 So.2d 806, 809 (Fla. 1st DCA 1985) (en banc), in which the First District certified the following question as being of great public importance:

In a suit for malicious prosecution, does a presumption of the existence of probable cause arise from a magistrate's finding of probable cause for an arrest warrant, that presumption being conclusive absent proof of fraud or other corrupt means employed by the person initiating the prosecution?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative. Nonetheless, we believe summary judgment was properly entered by the trial court in this case. Therefore, we approve the result but not the reasoning of the court below.

James Burns filed a malicious prosecution suit against his former employer, GCC Beverages, alleging that GCC had instigated and continued to prosecute theft charges against him without probable cause. The theft charges arose out of a dispute between GCC and a customer. When GCC requested payment, the customer initially responded that the check had been placed in the mail. Upon subsequent contact, GCC was told that the bill had been paid to its employee, Burns, in cash. GCC contacted the authorities and reported the customer's allegation. After speaking with GCC personnel and two employees of the customer, the investigating officer filed an affidavit and obtained an arrest warrant for Burns from a magistrate. Burns was formally charged, tried and found not guilty. Burns' subsequent suit against GCC for malicious prosecution was terminated by summary final judgment in favor of GCC. On appeal, the First District affirmed, holding that Burns could not prevail as a matter of law because the issuance of the warrant upon the magistrate's finding of probable cause constituted a conclusive presumption of probable cause absent proof of fraud or other corrupt means employed to obtain the warrant. Recognizing that its decision would have a major impact on malicious prosecution actions in Florida, the district court certified the question presented above.

To prevail in a malicious prosecution suit, a plaintiff must prove:

(1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action.

Buchanan v. Miami Herald Publishing Co., 230 So.2d 9, 11 n. 3 (Fla.1969) (on rehearing) (quoting Tatum Brothers Real Estate & Investment Co. v. Watson, 92 Fla. 278, 288, 109 So. 623, 626 (1926)). Accord Gause v. First Bank of Marianna, 457 So.2d 582 (Fla. 1st DCA 1984); Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th DCA 1981). Thus, proving the absence of probable cause is essential. The opinion of the First District, however, precludes a plaintiff from advancing any proof of this element when a warrant has been obtained from a magistrate in an ex parte proceeding, other than proof that the warrant was obtained by fraud or corrupt means. In essence, the determination of probable cause in an ex parte proceeding has been deemed by the district court to be an almost absolute defense to a malicious prosecution action. We cannot agree that this is or should be the law.

In Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), we determined that a magistrate's finding of probable cause after an adversary hearing constituted a conclusive presumption of the existence of probable cause in a subsequent malicious prosecution action, absent fraud or other corrupt means employed to obtain the warrant. The First District recognized Gallucci to be the seminal case. However, it interpreted Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977), as modifying Gallucci. In Colonial Stores, we characterized Gallucci as holding "that in a malicious prosecution suit a presumption arises from a magistrate's finding of probable cause which is conclusive, absent fraud or other corrupt means employed by the person initiating the prosecution." 355 So.2d at 1184. The district court inferred from the absence of any discussion in Colonial Stores regarding the specific facts of Gallucci that this Court intended to broaden its Gallucci holding to apply to any finding of probable cause by a magistrate. Such an interpretation is not warranted. The holding of a case is properly construed only in the context of the facts presented therein.

Moreover, the issue in Colonial Stores had nothing to do with a magistrate's finding of probable cause. The only question in Colonial Stores was whether the filing of an information by the state attorney constituted a presumption of probable cause in a subsequent malicious prosecution action. Colonial Stores expressly followed Ward v. Allen, 152 Fla. 82, 85, 11 So.2d 193, 195 (1942), which had explained that:

Although the proof of the issuance of the warrant and the filing of the information did not conclusively establish the presence of probable cause that evidence did tend to refute the absence of it. (Emphasis supplied.)

There is no question that in Gallucci's malicious prosecution action the accused was given the opportunity to refute the allegations supporting probable cause. 100 So.2d at 377. Because of this opportunity, the finding of probable cause permitted the presumption in the subsequent malicious prosecution action. In the instant case, the determination of probable cause for the issuance of the arrest warrant occurred at an ex parte hearing. Burns had no opportunity to even know what was being presented to the magistrate much less to refute it. Thus, under our decisions in Ward and Gallucci, the issuance of the arrest warrant for Burns does not establish a presumption of probable cause in his malicious prosecution action. The First District correctly stated the law in Pinkerton v. Edwards, 425 So.2d 147, 149 (Fla. 1st DCA 1983):

[B]ecause a Gallucci probable cause hearing permits both parties to present evidence on the issue of probable cause and to have the evidence considered by a neutral and disinterested magistrate, a finding of probable cause by the magistrate creates a presumption of probable cause which serves to shield prosecution, absent a showing of fraud or other improper behavior by the accuser. In effect, the probable cause hearing acts to transfer the responsibility for the prosecution from the accuser to the neutral and disinterested magistrate. (Emphasis supplied.)

Having established that the presumption presently exists only if the defendant has had an opportunity to participate in the determination of probable cause, we consider whether we should now extend the Gallucci presumption to a magistrate's finding of probable cause in the absence of a defendant's opportunity to participate. We first note that a balancing of the various interests involved has appropriately resulted in imposing a particularly heavy burden of proof upon an individual claiming malicious prosecution.

The tort of malicious prosecution is premised on the right of an individual to be protected from unjustifiable litigation or unwarranted criminal prosecution. Against this right, the need of society to bring criminals to justice by protecting those who, in good faith, report and legally prosecute persons apparently guilty of crime must be balanced. The latter need, in addition to the public policy in favor of the termination of litigation, dictates the plaintiff's heavy burden of proof. See generally W. Prosser, The Law of Torts § 119 (4th ed. 1971). This burden includes the onerous requirement of proving that the criminal proceeding was initiated by the defendant without...