Hopke v. O'Byrne
| Decision Date | 15 January 1963 |
| Docket Number | No. D-461,D-461 |
| Citation | 148 So.2d 755 |
| Parties | Richard A. HOPKE, Appellant, v. Thomas O'BYRNE, Appellee. |
| Court | Florida District Court of Appeals |
Paul R. Stern, Daytona Beach, for appellant.
William W. Judge, Daytona Beach, for appellee.
In this action for maliciously prosecuting a malicious prosecution suit, the plaintiff has appealed from a final judgment entered by the Circuit Court for Volusia County, dismissing his complaint.
The sole question to be determined on this appeal is whether in the present action the trial court properly granted the defendant's motion to dismiss the plaintiff's complaint. In such a consideration the trial court and this court are confined exclusively to an examination of the complaint and any attached documents incorporated therein in determining whether the plaintiff has alleged a cause of action. The question of the sufficiency of the evidence which the plaintiff will likely be able to produce in a hearing on the merits, is wholly irrelevant and immaterial in reaching such a determination.
In his complaint, filed on July 19, 1962, in the said Circuit Court, the plaintiff, Richard A. Hopke, alleges the following: That on or about June 6, 1961, the defendant, Thomas O'Byrne, filed a complaint in the said Circuit Court, which latter complaint alleges that Hopke had on May 11, 1961, maliciously and without probable cause filed his sworn affidavit in a justice of the peace court in said county charging O'Byrne with the crime of operating a business in violation of a zoning resolution of the North Peninsula Zoning District; that, based upon such affidavit, the said justice of the peace issued a warrant for the arrest of O'Byrne, who was then arrested and taken into custody; that at a hearing held on May 31, 1961, the said charge was dismissed ant the criminal proceedings terminated in O'Byrne's favor; that by reason of the false affidavit O'Byrne was humiliated, embarrassed, and brought into public disgrace. That on August 4, 1961, the Circuit Court for Volusia County entered a summary final judgment against O'Byrne in his malicious prosecution action. On appeal this court affirmed the said judgment in a per curiam order reported in 140 So.2d 155.
In his complaint in the instant action Hopke further alleges that on June 6, 1961, when O'Byrne filed his malicious prosecution action, he 'knew that the allegations contained in said complaint were false and untrue, that there was no probable cause for charging' Hopke as he did, and that Hopke 'had not instigated criminal proceedings against' O'Byrne. Hopke also alleges that O'Byrne's said action was filed with the intent to bring Hopke's good name into disgrace and disrepute, and with the further intent of coercing the North Peninsula Zoning Commission, of which Hopke was chairman, into approval of a certain plat...
To continue reading
Request your trial
-
Rushing v. Bosse
...the complaint. See, e.g., Merlin v. Boca Raton Community Hosp., Inc., 479 So.2d 236, 239 (Fla. 4th DCA 1985); see also Hopke v. O'Byrne, 148 So.2d 755 (Fla. 1st DCA 1963); Lewis State Bank v. Travelers Ins. Co., 356 So.2d 1344 (Fla. 1st DCA 1978). Accordingly, we will not at this time consi......
-
Kalt v. Dollar Rent-A-Car
...v. Gulf Heating & Refrigeration Co., 184 So.2d 705 (Fla.2d DCA 1966), quashed on other grounds, 193 So.2d 4 (Fla.1966); Hopke v. O'Byrne, 148 So.2d 755 (Fla.1st DCA 1963); Calbeck v. Town of South Pasadena, 128 So.2d 138 (Fla.2d DCA 1961); Wilson v. O'Neal, 118 So.2d 101 (Fla.1st DCA 1960),......
-
Miller v. Highlands Ins. Co., 75--1446
...the trial court and this court on appeal must assume all the well-pleaded allegations of the complaint to be true. Hopke v. O'Byrne, 148 So.2d 755 (Fla.1st DCA 1963). The Probate Division of the Circuit Court of Broward County appointed Kathryn Miller to be personal representative of her de......
-
Wright v. Yurko
...of these elements of malicious prosecution are properly pleaded in a complaint, the suit must be allowed to proceed. Hopke v. O'Byrne, 148 So.2d 755 (Fla. 1st DCA 1963). On the other hand, if one element is not sufficiently pleaded, the complaint should be dismissed. Napper v. Krentzman, 10......