Jaye v. Royal Saxon, Inc., 89-3246
Decision Date | 30 January 1991 |
Docket Number | No. 89-3246,89-3246 |
Citation | 573 So.2d 425,16 Fla. L. Weekly 327 |
Parties | 16 Fla. L. Weekly 327 Mildred R. JAYE, Appellant, v. ROYAL SAXON, INC., Appellee. |
Court | Florida District Court of Appeals |
Michael B. Small of Small, Small & Small, P.A., Palm Beach, for appellant.
John J. Bulfin of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appellee.
This is an appeal from a final summary judgment for the defendant in an action for malicious prosecution. The trial court, properly, applied this court's opinion in Cypher v. Segal, 501 So.2d 112 (Fla. 4th DCA 1987), in holding that the plaintiff in a malicious prosecution action, who has previously taxed fees and costs in a successfully defended underlying action, is barred by that election from seeking additional damages.
In Cypher, this court determined that this language in Cate v. Oldham, 450 So.2d 224 (Fla.1984) was controlling:
At common law successful defendants could either tax costs and fees in the original action, or they could sue for malicious prosecution upon the basis of those losses; they could not do both. Parker v. Langley, 93 Eng.Rep. at 297. There being no Florida decision or statute to the contrary, the common law rule precludes such an attempt at double recovery here.
Although both Cate and Cypher involved acts of public officials, those cases were deemed controlling in River Bend Marine, Inc. v. Sailing Assoc., Inc., 539 So.2d 507 (Fla. 4th DCA 1989), involving only private parties. We note that the First District, in Turkey Creek, Inc. v. Londono, 567 So.2d 943 (Fla. 1st DCA 1990), disagreed with this court's interpretation of the Cate language. Following Cypher, we affirm the judgment. However, as we deem the issue to be of great public importance we certify this question to the supreme court:
WHETHER CATE V. OLDHAM APPLIES TO PRIVATE LITIGANTS, TO BAR A SUBSEQUENT ACTION FOR MALICIOUS PROSECUTION WHERE THE PLAINTIFF HAS PREVIOUSLY ELECTED TO TAX COSTS AND/OR FEES AFTER SUCCESSFULLY DEFENDING THE UNDERLYING ACTION?
WARNER, J., concurs specially with opinion.
I concur because of the precedent of Cypher v. Segal and River Bend Marine, Inc. v. Sailing Assoc., Inc. cited by the majority, even though I disagree with Cypher. I fully concur in the certification of the question to the Supreme Court.
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Urbanek v. 18th Hole at Inverrary Condominium Ass'n, Inc., 90-1880
...judgment for the appellees. We affirm. This court recently addressed the precise issue presented in this case in Jaye v. Royal Saxon, Inc., 573 So.2d 425 (Fla. 4th DCA), rev. pending, (Fla. Mar. 1, 1991) (No. 77,570). The final judgment was affirmed in Jaye because of Cypher and River Bend ......
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Jaye v. Royal Saxon, Inc.
...Rutledge, P.A., Tallahassee, amicus curiae for Florida Defense Lawyers Ass'n. HARDING, Justice. We have for review Jaye v. Royal Saxon, Inc., 573 So.2d 425 (Fla. 4th DCA 1991), in which The Fourth District Court of Appeal certified the following question as one of great public importance: W......