Community Nat. Bank of Bal Harbour v. Burt

• Decision Date: 08 March 1966
• Docket Number: No. 65-500,65-500
• Citation: 183 So.2d 731
• Court: Florida District Court of Appeals
• Parties: COMMUNITY NATIONAL BANK OF BAL HARBOUR, Appellant, v. Harry M. BURT, Appellee.

Page 731

183 So.2d 731

COMMUNITY NATIONAL BANK OF BAL HARBOUR, Appellant, v. Harry M. BURT, Appellee.

No. 65-500.

District Court of Appeal of Florida, Third District.

March 8, 1966.

Copeland, Therrel, Baisden & Peterson and Meek Robinette, Miami Beach, for appellant.

Jepeway & Gassen, Miami, for appellee.

Before TILLMAN PEARSON, CARROLL and SWANN, JJ.

TILLMAN PEARSON, Judge.

The appellee, Harry M. Burt, brought an action for malicious prosecution against the appellant, Community National Bank of Bal Harbour. The Bank had joined Burt as a defendant in a prior suit on a promissory note in which the Bank had claimed that Burt was a guarantor. The prior suit was ultimately decided in favor of Burt. In the present suit Burt alleged that the prosecution of the suit on the claimed guaranty was willful, malicious and without reasonable or probable cause. At the conclusion of a jury trial, the appellee, Burt, received a verdict and judgment. This appeal by the Bank is from the final judgment.

The second point presented urges that the trial court erred in failing to direct a verdict for the defendant, appellant. We hold that reversible error is demonstrated on the record and reverse the judgment. The facts upon which our decision rests appear without substantial controversy in the record. It is our view that the trial judge misapprehended the legal effect of the evidence.

In the first action, the Bank sued Trio Construction, Inc., a Florida corporation, on a promissory note for $25,000, dated January 27, 1960. The note evidenced a loan by the Bank to the corporation. The appellee, Harry M. Burt, was made a party defendant to the action because of a written guaranty he had made on May 5, 1958. ¹ He had guarantied payment of the notes of the corporation to the Bank, aggregating a sum not to exceed $50,000 and renewals thereof.

Burt, in his defense of the action, claimed that the aggregate of $50,000 had been loaned and repaid before the loan in question, and that this discharged his liability upon the guaranty. He also claimed the guaranty had been discharged because the Bank had notified him before making the loan in question, that it would make the loan only if he (1) would secure such loans by assigning satisfactory notes receivable to the Bank and authorize it to make necessary collections, or (2) submit a certified financial statement prepared by a reputable certified public accountant listing Mr. Burt's assets and liabilities in detail. ² Burt pointed out that he did not meet either of these conditions.

Both the Bank and defendant, Burt, moved for summary judgment in the suit on the guaranty. In the trial court, the Bank's motion was granted in reliance upon the affidavits of MacCallum, who was Executive Vice President of the Bank, and of Baisden, who was a director and the attorney for the Bank. Burt appealed the summary final judgment to this Court. Upon that appeal, we reversed the summary final judgment for the Bank and directed the trial court to enter a summary judgment for the defendant Burt. We held that the action of the Bank, in its letter of April 22, 1959, operated to terminate the guaranty. See Burt v. Community National Bank of Bal Harbour, Fla.App.1962, 142 So.2d 118.

As previously stated, upon the termination of the action against him on the alleged guaranty, Burt instituted the instant action against the Bank alleging a malicious prosecution of the action on the alleged guaranty. The elements required to sustain an action for malicious prosecution were enumerated in Tatum Brothers Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623, 626 (1926). They are:

'(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.'

And in Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878, 880 (1931), the Court held:

'All these elements must be established by a preponderance of the evidence, and the burden of proving them, including the concurrence of malice and want of probable cause, is on the plaintiff. Malice may be implied or inferred from want of probable cause, but want of probable cause cannot be inferred from malice.'

In considering the proof necessary to establish the elements set forth, it is important to emphasize the last sentence of the above quotation, because we hold that lack of probable cause was not proved in the present case. Lack of probable cause for a prosecution may not be inferred from the existence of malice. See Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942).

The failure of the appellee, as plaintiff in the trial court, to prove the essential element of lack of probable cause is indicated by the fact that the appellant, Bank, originally was granted a summary final judgment in the initial action. The subsequent...