Harris v. Lewis State Bank
| Decision Date | 23 January 1986 |
| Docket Number | No. BE-429,BE-429 |
| Citation | 482 So.2d 1378,11 Fla. L. Weekly 276 |
| Parties | 11 Fla. L. Weekly 276, 11 Fla. L. Weekly 319 Jessie Mae HARRIS, Appellant, v. The LEWIS STATE BANK, Appellee. |
| Court | Florida District Court of Appeals |
Samuel T. Adams, Panama City, for appellant.
Guyte P. McCord, III of MacFarlane, Ferguson, Allison and Kelly, Tallahassee, for appellee.
The parties are before this court for the third time on an action by appellant Harris Upon remand to the trial court, appellant moved to amend her complaint to correct typographical errors and to state additional causes of action for negligence and for fraud and deceit. The proposed amended complaint retained the factual allegations of the malicious prosecution count, notwithstanding this court's opinion, because these allegations formed the basis for the false imprisonment count and for the negligence and fraud counts sought to be added. The trial court denied the motion to amend, on the grounds that the new causes of action were barred under the doctrines of res judicata or law of the case, and that they were also barred under the principles enunciated in Dober v. Worrell, 401 So.2d 1322 (Fla.1981) and Pokorny v. First Federal Savings & Loan Association of Largo, 382 So.2d 678 (Fla.1980). This court treated the appeal of that order as a petition for writ of certiorari, granted the petition and quashed the order "... insofar as it denies leave to add counts stating causes of action in negligence and fraud and deceit." Harris v. Lewis State Bank, 451 So.2d 924 (Fla. 1st DCA 1984) (Harris II ).
alleging false imprisonment, malicious prosecution, negligence, and fraud against appellee Lewis State Bank. The pertinent facts are recited in Harris v. Lewis State Bank, 436 So.2d 338 (Fla. 1st DCA 1983) (Harris I ). Appellant initially sued the bank for malicious prosecution and false imprisonment. Without filing an answer to appellant's complaint, the bank moved for summary judgment, which was granted by the trial court. On appeal, this court reversed the summary judgment as to the false imprisonment count against the bank, but affirmed as to the malicious prosecution count, stating that the relationship between the misinformation imparted by the bank and appellant's later detention, arrest and prosecution, "... is simply too tenuous to ever reach the level of legal causation and malice required in a malicious prosecution action." Id. at 340-41.
Upon remand, the trial court entered an order granting the motion to amend in accordance with the mandate of this court. The bank then moved to dismiss all causes of action against it, including the action for false imprisonment. 1 In the order from which this appeal is taken, the trial court granted the bank's motion and dismissed all counts of the complaint relating to the bank, including the false imprisonment count. We here attempt to disentangle this case from the web of confusion in which it has become enmeshed, hopefully without further confusing appellant's counsel and the trial court.
The order from which this appeal was taken dismissed all the counts against the bank, "with leave to the plaintiff to file any further amended counts she may desire." On its face, this order is non-final and therefore non-appealable. See Moylan v. Estes, 110 So.2d 48 (Fla. 3d DCA 1959) in which the plaintiff, under similar circumstances, sought appellate review by certiorari. The parties were cited to Moylan and instructed to discuss this court's power to review the subject order. After hearing their arguments, and upon due consideration, we treat the notice of appeal in this case as a petition for writ of certiorari. In order to clarify the problems presented, so as to reach a just and reasonable solution, we must begin at the beginning, with a
reconsideration of the problems addressed by this court in Harris I.
The parties do not dispute the existence of three of the elements required to prove the tort of malicious prosecution: (1) The commencement and continuation of a criminal judicial proceeding; (2) its bona fide termination in favor of the plaintiff, and (3) damages resulting to the plaintiff. A fourth element, the presence of malice, may be inferred from the absence of probable cause for such prosecution, the fifth element. 2 The sixth element, legal causation, requires a showing that the defendant was in some way responsible for the criminal prosecution. 3 Although legal causation is usually established by the signing of a complaint or affidavit, there is authority for the proposition that the giving of information may constitute the initiation of prosecution, if the information was known by the giver to be false. 4 The real instigator cannot escape liability by showing he was not the prosecutor of record. 5 The test is whether the defendant's action was the proximate and efficient cause of putting the law in motion. 6 Although one may not have intended to institute a criminal proceeding, he may be liable if he afterward continued the prosecution or gave it momentum. 7
Appellant has alleged 8 that the bank, through its employees, told John Lewis that someone was forging his daughter's signature, and failed to disclose to the investigating officer 9 and later to the prosecutor A separate question to be considered is whether appellant established an absence of probable cause for her criminal prosecution, from which the jury could infer malice. Probable cause has been defined as "a reasonable ground of suspicion, supported by the circumstances, that the person accused is guilty of the offense charged." 11 Where it would appear to a "cautious man" that further investigation is justified before instituting a proceeding, liability may attach for failure to do so, especially where the information is readily obtainable, or where the accused points out the sources of the information. 12 A lack of probable cause may be established by proof that a criminal proceeding was instituted on facts that could as well be explained innocently. 13 Appellant has alleged that the bank, through its employees, 14 knew or should have known 15 that appellant had been authorized and even encouraged by the bank to treat the money in John Lewis' account as her own at the time it led Lewis to believe a forgery had occurred, and that it withheld this information from the police and prosecutor. 16 A jury question was therefore presented 17 as to whether probable cause existed for appellant's prosecution and whether malice could be inferred by the jury 18 from the absence of probable cause and the bank's actions, both before This court is authorized to reconsider and reverse a previous ruling that has become the "law of the case." Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965). An appellate court's duty to administer justice under the law outweighs its duty to be consistent. 20 While the law of the case will seldom be reconsidered or reversed, an exception to the general rule binding the parties to the law of the case may be made in unusual circumstances where manifest injustice will result from a strict and rigid adherence to the rule. Id. at 4. We are convinced that this court's ruling in Harris I affirming the summary judgment as to the malicious prosecution count was erroneous and will result in manifest injustice. 21 We therefore reverse that ruling and hold that appellant's complaint states a cause of action for malicious prosecution and that at this stage there exist disputed issues of material fact so that disposition by summary judgment is not appropriate.
the true circumstances surrounding the withdrawals (which information would have resulted in cessation of the proceedings against appellant). A jury question was therefore presented as to whether, notwithstanding that the bank officials did not swear out the complaint, the bank was responsible for appellant's arrest and prosecution. 10 The trial court's order granting summary judgment was not proper and should not have been affirmed on this ground
and after her arrest. Under these circumstances, summary judgment was not appropriate and should not have been affirmed. 19
The trial court erred in dismissing appellant's action for false imprisonment against the bank. Appellant's complaint states a cause of action for false imprisonment. This court's opinion in Harris I, reversing the summary judgment relating to the claim for false imprisonment, precluded the trial court from granting the bank's motion to dismiss as to the count for false imprisonment. Moylan v. Estes, 110 So.2d at 49.
The trial court's order denying appellant's motion to amend her complaint to add causes of action for negligence and fraud, quashed by this court in Harris II, was based upon the finding that:
[T]he purported causes of action sought to be pled by the amendment are barred under the doctrines of res judicata or law of the case based on the opinion of the District Court in this cause reported at 436 So.2d 338 and further based on the principles enunciated in the cases of Dober v. Worrell, 401 So.2d 1322, and Pokorny v. First Federal Savings and Loan Association of Largo, 382 So.2d 678.
Notwithstanding this court's apparent rejection of these grounds in Harris II, the bank reasserted them in its motion to dismiss, along with other grounds. None of the grounds stated support the order.
Lewis State Bank asserts that the counts for false imprisonment, negligence and fraud must fail because they are based upon appellant's prosecution, damages for which may only be sought in a suit for malicious prosecution. This erroneous assertion is apparently based upon a misreading of Pokorny v. First Federal Savings and Loan Association of Largo, which involved a suit for false imprisonment. The case at issue is factually dissimilar from Pokorny, in which a bank's employees reported to...
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