Doss v. Bank of America, NA

• Decision Date: 31 October 2003
• Docket Number: No. 5D02-3310.,5D02-3310.
• Citation: 857 So.2d 991
• Parties: Kenya R. DOSS, Appellant, v. BANK OF AMERICA, N.A., Appellee.
• Court: Florida District Court of Appeals

857 So.2d 991

Kenya R. DOSS, Appellant, v. BANK OF AMERICA, N.A., Appellee.

No. 5D02-3310.

District Court of Appeal of Florida, Fifth District.

October 31, 2003.

Eric W. Ludwig of Eric W. Ludwig, P.A., Altamonte Springs, for Appellant.

Ashley N. Rosenthal and John R. Hamilton, of Foley & Lardner, Orlando, for Appellee.

SHARP, W., J.

Kenya Doss appeals from a final summary judgment against her and in favor of Bank of America (Bank), in a malicious prosecution suit she filed against the Bank. The underlying suit on which the malicious prosecution is based was a civil action in which the Bank sued Doss to collect approximately $5,000.00. The Bank paid $5,000.00 to an unknown person or persons, who presented bogus checks, on which Doss' endorsement was forged. In granting summary judgment, the trial court ruled that Doss' malicious prosecution suit could not proceed because, based on the undisputed facts in the record, there had not been a bona fide termination of the underlying suit in Doss' favor, which is an essential element in a malicious prosecution suit.¹ We reverse because we find, based on this record, that the first suit was terminated in favor of Doss, even though it was dismissed on joint stipulation by the parties.

In contrast to some of the cases cited by the parties in this appeal, the facts and circumstances of the underlying case and its joint dismissal are not in dispute. Thus, it is not necessary for us to remand this case to a fact-finder to resolve disputed questions of fact. See Alamo Rent-A-Car, Inc. v. Mancusi, 599 So.2d 1010 (Fla. 4th DCA 1992),

approved in part, quashed in part, 632 So.2d 1352 (Fla. 1994); Guzman v. Toyota Motor Credit Corp., 745 So.2d 1123 (Fla. 5th DCA 1999). Rather, the issue is one of law for the court to resolve. See Jones v. State Farm Mutual Automobile Ins. Co., 578 So.2d 783 (Fla. 1st DCA 1991); Della-Donna v. Nova University, Inc., 512 So.2d 1051 (Fla. 4th DCA 1987); Union Oil of California v. Watson, 468 So.2d 349 (Fla. 3d DCA 1985). See also Villa v. Cole, 4 Cal. App.4th 1327, 6 Cal.Rptr.2d 644 (1992).

The Facts.

The record establishes that Doss opened an individual savings account with the Bank in May of 2000, with a deposit of $200.00. She was employed at that time by Miracle Ear as a telemarketer, and she used the savings account to deposit her earnings. She had no checking account and no checks on this account, but would make cash withdrawals from it to pay her rent and other living expenses. There was little activity in this account, and the balance was always quite low.

Some time between July 14, 2000 and July 17, 2000, twenty-eight checks were presented to various branches of the Bank in central Florida to be cashed. Their total exceeded $5,000.00. The checks were drawn on an account in the name of Layla King, which purported to be with the First Union Bank. They named Doss as the payee of the check, and they were endorsed on the back with what purported to be Doss' signature. The person cashing the checks presented identification indicating she was Doss. The Bank accepted the checks, and paid the person the cash value of each check.

As it turned out, there was no account in the name of Layla King at the First Union Bank, or at least no current one, and First Union returned the checks. The Bank then charged Doss' savings account based upon their claim of her liability allegedly created by her endorsement on the bogus checks. At that time, Doss had a small balance in her savings account of $37.14. The Bank set that off and closed her account.

The Bank referred this matter to its fraud investigation department. Roy Gonzaque was assigned to investigate it. He and others from the Bank called Doss to determine whether she had cashed the twenty-eight checks, or had participated in cashing them in any way. Gonzaque testified in his deposition that he concluded Doss had nothing to do with the check-cashing scheme, and that a "customer impersonator" had defrauded the Bank. This kind of fraud had been perpetrated against the Bank more than ten times in the past five years. In concluding that Doss was not responsible for the fraudulent activity, he recommended that no collection be pursued against her. His report was filed with his supervisor, Donald Blinn, in September of 2000 and placed on the Bank's computer system.

Blinn testified in his deposition that he had no basis to question Gonzaque's report and he "closed out" the file in January of 2001. He had heard nothing more about this matter until shortly before his deposition in March of 2002, in connection with this malicious prosecution suit, when he learned that the Bank had filed suit against Doss, seeking collection of the bogus or forged checks, fees, interest, and other penalties.²

On May 12, 2001, for reasons no one could explain³ the Bank filed suit against Doss in the County Court for Orange County, Florida, for damages in the sum of $5,309.80, plus interest, costs and attorney's fees. The case had not proceeded very far before the Bank discovered it had a problem based on its fraud investigation report. On August 22, 2001, an attorney for the Bank wrote a letter to Doss' attorney offering to settle the case "for the amount you say is due, that being $37.14." He also enclosed a copy of the savings account contract between Doss and the Bank, which indicated there was no basis for an award of attorney's fees. Doss and her attorney agreed to a joint stipulation for dismissal on that basis, and the County Court dismissed the lawsuit and counterclaim with prejudice. The Bank paid Doss $37.14.

Thus the stage was set for this proceeding. In December 2001, Doss sued the Bank in circuit court for malicious prosecution, based on its having sued her to collect the sums it lost in paying the bogus or forged checks. The Bank filed an answer and an affirmative defense, claiming that there had not been a "bona fide termination" of the collection suit because it was dismissed by the joint stipulation of the parties. The Bank argued the joint dismissal was bargained for because Doss received $37.14 (the balance of her savings account prior to the Bank's wrongful setoff due to the bogus or forged checks), waived any interest due on that sum, and neither party pursued attorney's fees. The Bank filed a motion for summary judgment on the same grounds. After hearing argument of counsel at the summary judgment hearing, the trial court granted the Bank's motion.

The Law.

It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a "bona fide termination" in that party's favor. Alamo Rent-A-Car; Union Oil of California at 353. This is a fancy phrase which means that the first suit, on which the malicious prosecution suit is based, ended in a manner indicating the original defendant's (and current plaintiff's) innocence of the charges or allegations contained in the first suit, so that a court handling the malicious prosecution suit, can conclude with confidence, that the termination of the first suit was not only favorable to the defendant in that suit, but also that it demonstrated the first suit's lack of merit. Prosser, Torts 4th ed, at 838; 850-51; Restatement of Torts 2d (1077), § 660 Comment a; Villa v. Cole. Therefore, suits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not "bona fide terminations" and will not support a malicious prosecution suit. See Union Oil (comprehensive discussion by Judge Ferguson).

Because lawsuits that end as the result of settlements or joint stipulations generally do not clearly demonstrate the lack of merit of the first suit, they are usually found insufficient to constitute "bona fide terminations" of the prior litigation. Della-Donna; Webb v. Youmans, 248 Cal.App.2d 851, 57 Cal.Rptr. 11 (1967); Villa v. Cole; Prosser, Torts 4th ed., at 854. However, Florida courts take the view that bargaining or negotiating for the termination of litigation does not always negate the bona fide nature of the termination. Alamo Rent-A-Car at 1355. Whether a withdrawal or abandonment of a lawsuit constitutes a bona fide termination in favor of a person against whom the suit was brought, depends on the total circumstances surrounding the withdrawal or abandonment. Union Oil of California, 468 So.2d at 355; Restatement Torts 2d, § 674 comment on clause (b). It is favorable if the dismissal indicates the lack of merit of the case against the defendant in a civil case.⁴

Analysis.

The Bank argues that its payment of $37.14 was "bargained for" as part of the joint stipulation, and although not a substantial sum, it was sufficient to indicate the conclusion of the collection suit was not a bona fide termination. In our view, it is not the paucity of the amount involved in the counterclaim that is critical; it is its nature.

In the collection suit, the Bank had sought to recover the sums from Doss which it paid out on the bogus or forged checks, as it admitted in this lawsuit, completely without legal justification. As part of the effort to recover those losses, it unilaterally "setoff" her savings account, which then had the small balance of $37.14. But the Bank had no more legal right to take Doss' savings account balance than it did to sue her for the bogus or forged checks it cashed. Restitution of Doss' savings account balance was inextricably connected with the Bank's misguided collection suit, and if anything, its payment demonstrated the Bank's opinion of Doss' complete innocence in the total circumstances surrounding the collection suit.

The Bank also argues that the joint stipulation to dismiss was bargained for because Doss waived her right to claim interest on her $37.14 savings account balance. In Doss' response to the Bank's attorney's letter, he...