Harris v. Lewis State Bank, AP-230

• Decision Date: 12 August 1983
• Docket Number: No. AP-230,AP-230
• Citation: 436 So.2d 338
• Parties: Jessie Mae HARRIS, Appellant, v. The LEWIS STATE BANK, Appellee.
• Court: Florida District Court of Appeals

Page 338

436 So.2d 338

Jessie Mae HARRIS, Appellant, v. The LEWIS STATE BANK, Appellee.

No. AP-230.

District Court of Appeal of Florida First District.

Aug. 12, 1983.

Rehearing Denied Aug. 31, 1983.

Samuel T. Adams, Panama City, for appellant.

Cynthia S. Tunnicliff of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellee.

ERVIN, Chief Judge.

In this appeal from entry of summary judgment on behalf of appellee, the Lewis State Bank (Bank), appellant, Jessie Mae Harris (Harris), contends that summary judgment was improper because material issues of fact remain unresolved in her action for malicious prosecution and false imprisonment. We agree, as to the count alleging false imprisonment only, and affirm in part and reverse in part.

The record discloses that Harris, a semi-literate, ninety-pound black woman, partially crippled from a bout with polio, received a statement from the Bank in July of 1980, which was addressed to "John Lewis and Jessie Mae Harris", General Delivery, Woodville, Florida. The statement had been forwarded to Harris at her correct mailing address of General Delivery, Crawfordville, Florida. Knowing that she did not have any bank account in general and that she did not have one at the Lewis State Bank in particular, Harris went to Tallahassee to find out what the statement meant. Upon arriving at the Bank, Harris told a teller that she had received the statement; that, while she had some relatives in South Florida named "Lewis", she was not familiar with a "John Lewis", and that she did not understand why she had received the statement. After checking Harris' personal identification, but not the signature cards for the account on file at the Bank, the teller informed Harris that some one must have put the money in the bank for her and that she could make withdrawals on the account. Harris returned to the Bank on July 21, 1980 and was allowed to withdraw $500.00 after presenting her social security and voter's registration cards as identification. To facilitate future withdrawals, Harris was told she should have a picture identification card made and was directed to another bank employee for that purpose. Harris received the Bank identification card approximately one week later by mail. Between July 23, 1980 and September 17, 1980, Harris made four more withdrawals totaling $475.00.

Meanwhile, John Lewis, who had been hospitalized for some time, returned home. On September 22, 1980, he went to the Bank and discovered the deductions from the account. Lewis was told by bank officials that either his daughter, "Jessie Mae Harris" of Miami, had withdrawn the money or someone had forged her name and made unauthorized withdrawals. Lewis' daughter came to Tallahassee from Miami and verified that she had not made the withdrawals; the Bank reimbursed Lewis for the missing money, and a new account in the name of "John Lewis" in trust for "Jessie Mae Harris" was opened.

John Lewis, believing that someone had forged his daughter's signature and that the culprit was one of his neighbors who had taken advantage of him while he was in the hospital, contacted the Leon County Sheriff's Department to report the incident. Detective Franklin was assigned to investigate the report, and, in the course of that investigation, contacted Lewis, the suspected neighbor, and bank officials. At no time was Franklin told that Bank employees had allowed Harris to withdraw the money. Franklin told Bank officials to be on the lookout for anyone attempting to withdraw money from Lewis' account.

In January of 1981 the Bank sent a statement for the new account to Lewis and that statement was again erroneously forwarded to Harris in Crawfordville. On January 21, 1981, Harris returned to the bank to make a withdrawal. When she identified herself and stated her purpose bank officials were called and the Bank security guard, Manley Woodson (an off-duty Tallahassee police officer), detained Harris until the arrival of Detective Franklin, who arrested Harris and then took her to the Sheriff's Department for questioning. Harris there recounted the events surrounding the withdrawals and told Franklin that she believed, based upon information received from Bank employees, that someone had left the money for her in a will. Despite the fact that Detective Franklin later stated he believed Harris honestly thought someone had left her the money, he executed a probable cause affidavit charging Harris with grand theft. She was later tried and acquitted on all counts.

After the trial, Harris filed a complaint against Leon County Sheriff Eddie Boone, alleging false imprisonment and malicious prosecution. No answer to the complaint was made; instead Boone moved for summary judgment. Harris then sought leave to join the Bank as a defendant and to amend her complaint by alleging the same torts against the Bank. The lower court first granted, then denied, Boone's motion for summary judgment and the action against Boone is still pending. The court also granted Harris' motions to amend pertaining to the Bank. The Bank, then a party to the action, without filing an answer, moved for summary judgment. Summary judgment was entered in favor of the Bank on October 12, 1982, the court finding that there were no genuine issues as to any material facts in dispute and that the Bank's alleged participation in Harris' arrest, detention and prosecution consisted of no more than her arrest and brief detention by an "off-duty police officer employed by this Defendant, but acting under his authority as a law enforcement officer ...."

In addressing the issue before us we return to the well-worn maxim that summary judgment "should not be granted unless the facts are so crystallized that nothing remains but questions of law ...", Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810, 817 (Fla. 1st DCA 1976), and if there is "the slightest doubt upon any issue of material fact[,] then ... summary judgment may not be entered." ¹ Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975) (e.s.). Despite the Bank's failure to frame the issues in this case by not filing an answer, we agree that the lower court properly granted summary judgment as to that count alleging malicious prosecution. In order to recover for this tort, Harris has the burden of alleging and proving a concurrence of the following six elements:

(1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff.

Johnson v. City of Pompano Beach, 406 So.2d 1257, 1258 (Fla. 4th DCA 1981). The absence of any one element is fatal to the action. Clements v. Eastern Airlines, Inc., 183 So.2d 264, 266 (Fla. 3d DCA 1966). The record indicates that John Lewis, upon learning of the unauthorized withdrawals, notified the Leon County Sheriff's Department, thus setting in motion the investigation which led to Harris' arrest and prosecution. While Lewis' initial report to law enforcement officials may have been prompted by the erroneous information he received from the Bank, the relationship between that misinformation and Harris' 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. We therefore affirm that portion of the lower court's order granting summary judgment as it relates to the charge of malicious prosecution.

We find, however, that the lower court erred in granting summary judgment on the count for false imprisonment. This tort is defined as "... the unlawful restraint of a person against his will, the gist of which action is the...