Cypher v. Segal

• Decision Date: 21 January 1987
• Docket Number: No. 85-1888,85-1888
• Citation: 501 So.2d 112,12 Fla. L. Weekly 365
• Parties: 12 Fla. L. Weekly 365 William L. CYPHER, Appellant, v. Joseph A. SEGAL and West American Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 112

501 So.2d 112

12 Fla. L. Weekly 365

William L. CYPHER, Appellant, v. Joseph A. SEGAL and West American Insurance Company, Appellees.

No. 85-1888.

District Court of Appeal of Florida Fourth District.

Jan. 21, 1987.

Scott N. Richardson and Janice M. Vessell of Reid & Ricca, P.A., West Palm Beach, for appellant.

Marjorie Gadarian Graham and Charles H. Damsel, Jr., of Jones & Foster, P.A., West Palm Beach, for appellees.

STONE, Judge.

A police officer of the Town of Palm Beach, Cypher, brought a malicious prosecution action against Segal. The action was based on an unsuccessful malicious prosecution suit brought by Segal against Cypher, the Town, and others, after Segal was acquitted in a criminal prosecution. The trial court in the present case granted a summary judgment in favor of Segal upon determining that Cate v. Oldham, 450 So.2d 224 (Fla.1984), was controlling. Assuming that Segal had sued Cypher in his individual capacity in the first action, the primary question on appeal is whether the defendants' election to tax costs in that case is a defense in this one.

In the initial malicious prosecution suit, Segal claimed that Cypher had acted wantonly and willfully in having initiated criminal proceedings against him, and sought punitive damages. A verdict was directed in favor of Palm Beach and Cypher. Their mutual attorney recovered a cost judgment against Segal on behalf of both the Town and Cypher. Cypher claims on appeal to have had no knowledge of the cost judgment, since all suit defense expenses had been borne by the municipality. However, the record is silent on this point.

In Cate v. Oldham our supreme court adopted the common law rule that a state officer who has been unsuccessfully sued in his official capacity may not then institute a suit for malicious prosecution in response. This restriction is based on the recognition that retaliatory suits by the government, or its officers, would have a chilling effect on the right of citizens to petition the state for redress of grievances. In essence, the case recognizes a privilege to sue the state without fear of reprisal. See also City of Long Beach v. Bozek, 31 Cal.3d 527, 183 Cal.Rptr. 86, 645 P.2d 137 (1982), vacated, 459 U.S. 1095, 103 S.Ct. 712, 74 L.Ed.2d 943 (1983), on remand, 33 Cal.3d 727, 190 Cal.Rptr. 918, 661 P.2d 1072 (1983) (government entities may not maintain actions for malicious prosecution against those who have sued them unsuccessfully).

The court in Cate also held that any damages incurred by the state in defending a suit against it or its officers should be recovered as costs in that action, and not through a subsequent suit. The court reasoned that at common law a successful defendant in a malicious prosecution action had the option to recover costs in that suit or to initiate a separate suit for malicious prosecution, but not both. The court held that with respect to government defendants sued in their official capacity, the second option was not available, and that they were confined to seeking their damages, to the extent of recoverable costs, in the first action.

In granting the summary judgment, the trial court reasoned that the decision by Cypher and the Town's attorney to seek costs in the first case was an election of remedies and a defense to this action, regardless of the issue of whether Cypher could also be barred from bringing this action if he had initially been sued only in his official capacity. Having reached his decision on the first point, the trial judge found, for the record, that the first action was indeed against Cypher in his "official capacity," thus barring this suit.

With respect to this last finding, Cate is distinguishable. In Cate, the court stated:

A government official sued only in his or her official capacity, and from whom no relief is sought which would run against his or her personal, as opposed to governmental behavior or finances, can claim no greater right to seek greater sanctions.

Id. at 227. Therefore, by implication, the result would have been otherwise if the relief sought had run against Cypher's personal finances. Accordingly, Cypher argues that the punitive damages sought in the first action could only have been against him in his individual capacity, and thus they ran against his own finances.

In City of Long Beach v. Bozek, the court recognized the right of individual employees to bring a malicious prosecution suit when th...