Cazares v. Church of Scientology of California, Inc.

• Decision Date: 15 December 1983
• Docket Number: No. 82-1386,82-1386
• Citation: 444 So.2d 442
• Court: Florida District Court of Appeals
• Parties: Gabriel CAZARES, Appellant/Cross-Appellee, v. The CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., a California corporation; Clyde H. Wilson, Jr., Wilson, Wilson & Namack Chartered, et al., Appellees/Cross-Appellants.

Page 442

444 So.2d 442

Gabriel CAZARES, Appellant/Cross-Appellee, v. The CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., a California corporation; Clyde H. Wilson, Jr., Wilson, Wilson & Namack Chartered, et al., Appellees/Cross-Appellants.

No. 82-1386.

District Court of Appeal of Florida Fifth District.

Dec. 15, 1983.

Rehearing Denied Jan. 27, 1984.

C. Allen Watts, DeLand, Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, Walt Logan, St. Petersburg, for appellant/cross-appellee.

J. Michael Hayes of Johnson, Paniello & Hayes, Tampa, for appellees/cross-appellants.

Tobias Tolzmann, appellee, pro se.

COBB, Judge.

This appeal concerns the trial court's dismissal of a complaint attempting to allege the torts of malicious prosecution in Count I and abuse of process in Count II. For the reasons explicated below, we affirm the dismissal of Count II but reverse the dismissal of Count I.

The appellant, Gabriel Cazares, originally filed the complaint on March 26, 1980, in Pinellas County. The cause was transferred to Volusia County, and Cazares filed an amended complaint on September 11, 1981, wherein he alleged that the defendant, the Church of Scientology of California, Inc., had maliciously sued him in federal court in 1976 for violation of its civil rights and for defamation. That action terminated at the trial level in favor of Cazares and, ultimately, that result was affirmed on appeal. See Church of Scientology of California v. Cazares, 638 F.2d 1272 (5th Cir.1981).

In November, 1981, the Church moved to dismiss both counts of Cazares' amended complaint. In moving to dismiss the second count, abuse of process, the Church asserted that no act, other than the wrongful filing of the underlying lawsuit, was alleged. Without belaboring the point, we affirm the trial court's dismissal with prejudice of Count II on the rationale of Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980), and McMurray v. U-Haul Co., Inc., 425 So.2d 1208 (Fla. 4th DCA 1983). As pointed out in those cases, abuse of process requires an act constituting the misuse of process after it issues. The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process. See Nash v. Walker, 78 So.2d 685 (Fla.1955).

The Church alleged that Count I should be dismissed on the bases that (1) there was no bona fide termination of the original federal action at the time Cazares filed suit, and (2) the ultimate facts alleged did not show that the underlying lawsuit (the federal court action) was initiated without probable cause. In dismissing the plaintiff's count for malicious prosecution, the trial court stated in its order:

... The Court has read and considered the case of The Church of Scientology vs. Gabriel Cazares, decided by the Fifth Circuit Court of Appeals in its opinion found at 638 F.2d 1272 (1981), which is specifically cited as part of the Plaintiffs' Amended Complaint and which sets forth in some detail the factual basis for the allegations filed by the Defendant, THE CHURCH OF SCIENTOLOGY, against GABRIEL CAZARES in a Title 42, Section 1983, Federal Civil Rights and Defamation Action. The Court carefully considered this opinion, and it is apparent on the face thereof that there was probable cause to bring the stated cause of action under the facts set forth therein and the laws of the State of Florida as set forth in the case of Heard vs. Mathis, 344 So.2d 641 , a decision of the First District Court of Appeals decided in 1977, and other Florida precedents.

In ruling that there was probable cause to bring the stated action, the Court notes that it is the Court's responsibility to determine whether or not there was probable cause, and it is only other factual matters which are necessary to be considered by the jury. See the case of Fee, Parker, and Lloyd, P.A. vs. Sullivan, 379 So.2d 412, a decision of the Fourth District Court of Appeals of Florida decided in 1980.

It is upon consideration thereof, ORDERED AND ADJUDGED by this Court that Count I, as to the Defendant, CHURCH OF SCIENTOLOGY, and as to the Defendants, CLYDE H. WILSON, JR., and WILSON, WILSON and NAMACK CHARTERED, be and the same is hereby dismissed with prejudice. In so doing, this Court would further note that there have been other persuasive arguments made by both Defendants for the dismissal of Count I on two grounds: (1) That the Complaint in the present suit was prematurely filed; and (2) That the federal suit was a privileged petition for a redress of grievances under the First Amendment to the Constitution of the United States of America. However, this Court feels that there is no necessity at this time to reach these issues by reason of the dismissal with prejudice of Count I as herein entered.

The elements of the cause of action of malicious prosecution are as follows:

(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.

Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980).

In the instant case, the point on appeal concerns element number 4, that of the absence of probable cause. Here, the judge, on a motion to dismiss, determined that probable cause did exist to bring the underlying suit, thus requiring that the complaint be dismissed, since an element of the cause of action was missing. The Church contends correctly that the question of probable cause may be one of law for the court. See City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (where facts are undisputed, courts should determine probable cause); Fee, Parker & Lloyd v. Sullivan, 379 So.2d 412 (Fla. 4th DCA), cert. denied, 388 So.2d 1119 (Fla.1980) (existence or lack of probable cause is a pure question of law for the court to determine, with the resolution of disputed issues of fact a question to be submitted to the jury). In the instant case, however, the court determined the question too soon. The cases relied on by the appellee ¹ deal with situations where the trial court ruled on the issue of probable cause when presented with either motions for summary judgment or directed verdict, not on a motion to dismiss as in the instant case.

The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss, the court must assume all the facts alleged in the complaint to be true. A motion to dismiss must be decided on questions of law only. The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action, and the court, when faced with a motion to dismiss a complaint for failure to state a cause of action, must confine itself strictly to the allegations within the four corners of the complaint. Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968). See also Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971); City of St. Augustine v. Authentic Old Jail, Inc., 388 So.2d 1044 (Fla. 5th DCA 1980). In the instant case, the complaint contained allegations relating to the lack of probable cause (paragraphs 13, 15), but the trial court determined from looking at the underlying action that indeed probable cause did exist and dismissed the count.

Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968), is almost identical to the instant case. In Kest, the plaintiff appealed from a final order dismissing with prejudice his complaint in a malicious prosecution action. The trial court's order dismissing the complaint stated that the court had taken judicial notice of the underlying suit, and that an examination of this suit showed that a motion for summary judgment was denied, which to the trial judge indicated that probable cause for the suit was present, leading to a dismissal of the malicious prosecution claim. ²

The Fourth District reversed, and after setting out the basic test on a motion to dismiss and the elements required for malicious prosecution, stated:

While it may be possible to show in later stages of this case that the element of probable cause did exist for instituting the first action, the posture of this action before the trial judge was on motion to dismiss the complaint. It was improper for the trial court to go beyond the four corners of the complaint when considering a motion to dismiss it and invoke presumptions of fact based upon denial of motions that were filed in a prior case. Such is not the province of the trial court in the process of determining if a complaint can withstand a motion to dismiss and would afford no procedural safeguard to the litigants involved.

Under these circumstances, we think that it cannot be said as a matter of law that the allegations of the complaint failed to state a cause of action, or that the complaint on its face shows that probable cause existed for instituting the first action. We conclude, therefore, that the trial court was in error in dismissing the complaint.

216 So.2d at 236. The actions of the trial court in Kest were the same as those in the instant case, and a similar result is warranted.

We should also address the other major argument presented before the trial court on the motion to dismiss, that of the complaint being prematurely filed. At argument below, the Church contended that the cause of action for malicious prosecution did not exist at the time that the suit was filed, since the element of a termination in favor of the present plaintiff was...