Gatto v. Publix Supermarket, Inc.

• Decision Date: 17 June 1980
• Docket Number: No. 79-1270,79-1270
• Citation: 387 So.2d 377
• Parties: Anthony GATTO, Appellant, v. PUBLIX SUPERMARKET, INC. and Harold Stepp, Appellees.
• Court: Florida District Court of Appeals

Page 377

387 So.2d 377

Anthony GATTO, Appellant, v. PUBLIX SUPERMARKET, INC. and Harold Stepp, Appellees.

No. 79-1270.

District Court of Appeal of Florida, Third District.

June 17, 1980.

Rehearing Denied July 25, 1980.

High, Stack, Lazenby, Bender, Palahach & Lacasa and Alan R. Dakan, Miami, William J. Williams, Coral Gables, for appellant.

Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.

Before HUBBART, NESBITT and DANIEL PEARSON, JJ.

DANIEL PEARSON, Judge.

The genesis of this case was an incident in which Publix employees, believing that Gatto had shoplifted some paperback books, (1) attempted to retrieve the books, (2) called the police who arrested Gatto, and (3) executed a sworn complaint leading to an abortive criminal prosecution of Gatto. Gatto thereafter sought damages in a suit against Publix Supermarket, Inc. and its store manager, Harold Stepp, charging assault and battery, false arrest and imprisonment, and malicious prosecution.

The trial court directed verdicts in favor of the defendants on all counts, and from those rulings, Gatto appealed. We affirm the trial court's rulings in respect to assault and battery and false arrest and imprisonment ¹; we reverse the directed verdict on the malicious prosecution count.

The evidence adduced by Gatto, viewed in a light most favorable to him, Wheaton v. Bohnert Roofing and Supply Co., 369 So.2d 1016 (Fla. 3d DCA 1979), establishes no more than a casual touching of Gatto's hand by Stepp during Stepp's efforts to retrieve what he reasonably believed to be Publix's property. ² There is no evidence to show that Gatto was placed in fear of imminent peril, that the contact was harmful or offensive to him, or that his personal dignity was offended by the touching. See McDonald v. Ford, 223 So.2d 553 (Fla. 2d DCA 1969) (in which the defendant's initial "laughing embrace" of the plaintiff, as distinguished from his later efforts to overcome her resistance, was said not to constitute an assault and battery); Restatement (Second) of Torts §§ 19, 21 (1966).

Similarly, by Gatto's own admission, at all times he considered himself free to leave the premises of Publix and was never restrained from leaving. While Stepp eventually called the police, he did so at Gatto's insistence. ³ The evidence, again viewed most favorably to Gatto, does not support a verdict for Gatto on the false arrest or imprisonment counts.

We now turn to the malicious prosecution count. The defendants' motion for the entry of the direct verdict was essentially grounded on their contention that Gatto failed to show that there was a bona fide termination of the criminal prosecution against him, and therefore failed to prove an essential element of his malicious prosecution action. It was upon this ground that the trial court ruled in the defendants' favor, and it is upon this ground that Publix and Stepp argue for affirmance on appeal. Of course, if Gatto failed to prove this or any essential element of his malicious prosecution action, it would be fatal to his action. Bieley v. duPont, Glore, Forgan, Inc., 316 So.2d 66 (Fla. 3d DCA 1975).

The evidence in the present case reveals that the sworn complaint (an arrest or "A" form) executed on January 20, 1978, by the arresting officer and countersigned by Harold Stepp was determined by the State Attorney's Office to be technically defective. The defects were duly noted on a penal screening form. The first defect was that the complaint charged Gatto with "retail theft in viol(ation) of F.S. 812.021" when the statute cited should have been F.S. 812.015. The second defect was that the complaint had no entry referring to any section of the Code of the City of Coral Gables which would enable a city police officer to arrest for violation of a state statute. The penal screening form contains, inter alia, two other lines which are pertinent to this appeal:

"1. The above case has been nolle prossed/no informationed."

"6. We respectfully decline to prosecute the charge."

A member of the State Attorney's Office drew a line under "no informationed" and initialled that entry. Prior to his scheduled arraignment, Gatto was notified by a letter from the court clerk that his case had "been closed by the State Attorney on an announcement of No Information." He was further instructed: "Should the State decide to refile the case within ninety days of the date of the offense, you will be notified of the new hearing date."

A copy of the penal screening form was sent to the arresting officer, but he did not contact the State Attorney's Office, and that office made no effort to contact him in order to correct the flaws.

Gatto contends that the "no information" constituted a bona fide termination of the criminal prosecution against him and satisfied that requisite element of his malicious prosecution action. We agree. ⁴

The essential element of a bona fide termination of the criminal prosecution in favor of the person bringing the malicious prosecution action has been held to be satisfied if there has been an adjudication on the merits favorable to him or if there is a good faith nolle prosequi or declination to prosecute. Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla. 3d DCA 1977); G. C. Murphy Company v. Freshko, 293 So.2d 791 (Fla. 3d DCA 1974); Davis v. McCrory Corporation, 262 So.2d 207 (Fla. 2d DCA 1972). The defendants here attach unwarranted significance to the phrases "nolle prosequi" and "declination to prosecute," suggesting that if the abandonment of the criminal prosecution is not so described, there is not a bona fide termination.

A "nolle prosequi" is merely an acknowledgment that the particular matter will not be further prosecuted, Hewitt v. International Shoe Company, 110 Fla. 37, 148 So. 533 (1933), or an expression of unwillingness to prosecute, Wilson v. Renfroe, 91 So.2d 857 (Fla. 1956). The underlying reason for a "nolle prosequi," even as the underlying reason for a "declination to prosecute" or a "no information," may or may not be related to the merits of the cause being abandoned. ⁵ We perceive no substantive distinction between these forms of abandonment or termination; the selection of one form or another is dictated simply by the point in time when the decision to abandon or terminate is made.

There are no magic words for termination. A malicious prosecution complaint that merely alleges that "the County Prosecutor . . . refused information on the said charge or charges and completely abandoned prosecution thereof" sufficiently pleads that element of the action. Calleja v. Wiley, 290 So.2d 123 (Fla. 2d DCA 1974).

"We would agree that the allegation of favorable termination might be made more specific, but there is no specific requirement that it be terminated in a particular way. See 52 Am.Jur.2d Malicious Prosecution § 34. The action for malicious prosecution does not depend on some specific event, because termination may be evidenced in a variety of ways . . . ." Calleja v. Wiley, supra, at 125.

See also Hammond Lead Products, Inc. v. American Cyanamid Co., 570 F.2d 668 (7th Cir. 1977) ("any form of termination of defendant's cause of action satisfies the social policy which underlies the rule which requires plaintiff to prove as an element of his cause of action that the proceedings were terminated in his favor."); Prosser, Torts § 119 (4th ed. 1977) at 839 ("(I)t will be enough that the proceeding is terminated in such a manner that it cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one. This is true, for example, of an acquittal in court, a discharge by a magistrate or a justice of the peace upon preliminary hearing, or by a governor in extradition proceedings, a failure of a grand jury to indict which results in discharge, the quashing of an indictment, the entry of a nolle prosequi or a dismissal, abandonment of the prosecution by the prosecuting attorney or the complaining witness, or continuance beyond a time limit, where any of these things have the effect of ending the particular proceeding and requiring new process or other official action to commence a new prosecution.").

The defendants' reliance on Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla. 3d DCA 1967), is misplaced. Freedman merely sets forth the rule that the termination must be bona fide, that is, not bargained for or obtained by the accused upon a promise of payment or restitution. Compare Shidlowsky v. National Car Rental Systems, Inc., supra (in which even though the criminal charges against Shidlowsky were dropped when he promised to pay the complainant, because Shidlowsky had made an identical promise to pay which had been rejected by the complainant before the bringing of the criminal charges, the case was distinguished from Freedman ). Williams v. Confidential Credit Corporation, 114 So.2d 718 (Fla. 3d DCA 1959), is also inapposite. Williams merely holds that an asylum state's refusal to extradite will not satisfy the bona fide termination requirement. Since a refusal to extradite neither abandons the prosecution nor constitutes a decision on the merits, the decision is confined to that unique factual setting. But see Keller v. Butler, 246 N.Y. 249, 158 N.E. 510 (1927). Lastly, the defendants call our attention to the statement in Arison Shipping Co. v. Hatfield, 352 So.2d 539 (Fla. 3d DCA 1977), that a bona fide termination of a prior civil suit "must be an adjudication on the merits." In Arison, the termination was a dismissal for lack of subject matter jurisdiction. The holding in Arison, that to constitute a bona fide termination there must first be jurisdiction in the court in which the proceeding terminates, see...