Law Offices of Harold Silver, P.A. v. Farmers Bank & Trust Co. of Kentucky, No. BM-375

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN
Citation11 Fla. L. Weekly 2550,498 So.2d 984
Decision Date03 December 1986
Docket NumberNo. BM-375
Parties11 Fla. L. Weekly 2550 LAW OFFICES OF HAROLD SILVER, P.A., Appellant, v. FARMERS BANK & TRUST COMPANY OF KENTUCKY, Daniel D. Thompson & Shirley A. Thompson, Appellees.

Page 984

498 So.2d 984
11 Fla. L. Weekly 2550
LAW OFFICES OF HAROLD SILVER, P.A., Appellant,
v.
FARMERS BANK & TRUST COMPANY OF KENTUCKY, Daniel D. Thompson & Shirley A. Thompson, Appellees.
No. BM-375.
District Court of Appeal of Florida,
First District.
Dec. 3, 1986.
Rehearing Denied Jan. 12, 1987.

Harold Silver, Gainesville & Arthur Haller, Gainesville, for appellant.

Karen K. Specie of Scruggs & Carmichael, Gainesville, for appellees.

ERVIN, Judge.

Appellant-plaintiff appeals from an order granting summary judgment in a action for

Page 985

malicious prosecution. We reverse and remand.

Appellant obtained a final judgment against Daniel D. Thompson and a writ of execution was issued pursuant to the judgment. In compliance with the writ, the sheriff levied upon an automobile owned by Thompson. Prior to the date of the execution sale, Farmers Bank and Trust of Bardstown, Kentucky (intervenor), intervened, claiming it had a superior interest in the judgment debtor's automobile. Following the procedure set out in Sections 56.16 through 56.18, Florida Statutes, a hearing was conducted on the intervenor's claim, which the lower court denied, ruling that the automobile did not belong to the intervenor. Damages were thereupon assessed against the bank in the statutory amount of 20 percent of the value of the automobile. The trial court subsequently entered another judgment against the bank, this time based on the value of that part of the property that would have been subject to execution and sale if there had been no action by the intervenor.

Appellant thereafter filed the present action against appellee for malicious prosecution. The case was concluded at the trial level by the lower court's order granting appellee's motion for summary judgment, entered on the ground that the statutory remedy provided in section 56.18 furnishes plaintiff the "total" remedy for damages sought against a third party garnishor, and that res judicata bars the subsequent action. We reverse, finding the trial court erred in applying res judicata to the instant cause, and in concluding that section 56.18 provides the exclusive statutory remedy for damages caused by wrongful third party intervention.

Florida jurisprudence recognizes the common law tort of malicious prosecution. Hopke v. O'Byrne, 148 So.2d 755 (Fla. 1st DCA 1963). The tort includes as one of its elements the wrongful initiation of a civil proceeding. W. Prosser and W. Keeton, Law of Torts § 120...

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9 practice notes
  • Dadeland Depot. v. St. Paul Fire and Marine, No. SC04-1828.
    • United States
    • United States State Supreme Court of Florida
    • December 21, 2006
    ...statute. Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla.1996); Law Offices of Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) (statute designed to alter the common law must speak in unequivocal Florida common law did not permit first party claims ......
  • Thornber v. City of Ft. Walton Beach, No. 74494
    • United States
    • United States State Supreme Court of Florida
    • October 11, 1990
    ...that regard. City of Hialeah v. State ex rel. Morris, 136 Fla. 498, 183 So. 745 (1938); Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986); Sand Key Associates, Ltd. v. Board of Trustees of Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984). Un......
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1996
    ...Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to......
  • Hollar v. International Bankers Ins. Co., No. 89-1951
    • United States
    • Court of Appeal of Florida (US)
    • November 27, 1990
    ...the established case law must show that intention in unequivocal terms. Law Offices of Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). The legislature is presumed to know the existing law at the time it enacts a statute. Ford v. Wainwright, 451 So.2d 471,......
  • Request a trial to view additional results
9 cases
  • Dadeland Depot. v. St. Paul Fire and Marine, No. SC04-1828.
    • United States
    • United States State Supreme Court of Florida
    • December 21, 2006
    ...statute. Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla.1996); Law Offices of Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) (statute designed to alter the common law must speak in unequivocal Florida common law did not permit first party claims ......
  • Thornber v. City of Ft. Walton Beach, No. 74494
    • United States
    • United States State Supreme Court of Florida
    • October 11, 1990
    ...that regard. City of Hialeah v. State ex rel. Morris, 136 Fla. 498, 183 So. 745 (1938); Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986); Sand Key Associates, Ltd. v. Board of Trustees of Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984). Un......
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1996
    ...Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to......
  • Hollar v. International Bankers Ins. Co., No. 89-1951
    • United States
    • Court of Appeal of Florida (US)
    • November 27, 1990
    ...the established case law must show that intention in unequivocal terms. Law Offices of Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). The legislature is presumed to know the existing law at the time it enacts a statute. Ford v. Wainwright, 451 So.2d 471,......
  • Request a trial to view additional results

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