Mendez v. Blackburn, 67--260
| Decision Date | 29 December 1967 |
| Docket Number | No. 67--260,67--260 |
| Citation | 205 So.2d 697 |
| Parties | Sylvia MENDEZ and Aristides Perez Mendez, Appellants, v. Ed BLACKBURN, Jr., a former Sheriff of Hillsborough County, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Guy B. Bailey, Jr., of Frates, Fay, Floyd & Pearson, Miami, for appellants.
Lucius M. Dyal, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, David H. McClain, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
This is an appeal by Sylvia Mendez and Aristides Perez Mendez, plaintiffs in the Court below, from a final summary judgment entered in favor of defendant Ed Blackburn, Jr., former sheriff of Hillsborough County, Florida, hereinafter called the Sheriff.
Plaintiffs sued the Sheriff in the Hillsborough County Circuit Court for money damages for injuries allegedly received as a result of false arrest, malicious prosecution, assault and battery, etc. Deputy Sheriffs William R. Weldon and David W. Mount were also named as defendants but they were never served, since deputy Mount was dead and deputy Weldon had departed the jurisdiction. The complaint, filed on May 13, 1966, alleged that Weldon and Mount, on May 15, 1964, while 'under the direction, control and supervision' of the Sheriff, choked, hit, beat and falsely arrested the plaintiff Mendez, and 'leaped over the counter and maliciously hit' plaintiff Sylvia Mendez, while in the restaurant operated by plaintiffs in Tampa. The Sheriff filed motion to dismiss on June 6, 1966, and in due course interrogatories were propounded and depositions of numerous witnesses were taken.
There had been a previous suit filed by plaintiffs on the same cause of action, dismissed for lack of prosecution, wherein depositions of deputies Weldon and Mount, the Sheriff, and the two plaintiffs had been taken, which together with the new depositions, were all before the Court in the current case.
On January 26, 1967, the Sheriff moved for summary judgment. On April 20, 1967, the trial Judge entered two orders, one denying the Sheriff's motion to dismiss, and the other entering final summary judgment in favor of the Sheriff. In the order entering summary judgment the Court commented that liability was sought to be imposed upon the Sheriff--
'because at the time of the acts complained of said defendant was Sheriff of Hillsborough County, Florida, and not because of any act done by defendant Blackburn (who) did not participate in, did not direct or order, had no knowledge of, did not consent to, and did not authorize any of the acts complained of; and, there is no basis in the record for a contrary inference * * * and * * * the Court * * * finds that there is no genuine issue of material fact and that the Sheriff may not be held liable for the acts of the deputies complained of.'
The order stated that the Court had reached such conclusion upon consideration of the pleadings and all the depositions filed in the cause, which included those filed in the previous case, and also the affidavit of the Sheriff filed in support of his motion for summary judgment, which affidavit set forth inter alia--
'That he was the duly elected sheriff of Hillsborough County, Florida, at the time of the acts alleged therein; that deponent was not present and did not in any way participate in the acts alleged to have been committed by William R. Weldon and David W. Mount; that the alleged acts were not directed or ordered by deponent at any time; that he has no personal knowledge by his own observation of the alleged acts or events leading up to same; that the alleged acts were done without the knowledge and consent of deponent; that the said William R. Weldon and David W. Mount were never at any time authorized by deponent to commit an assault and battery on the person of plaintiffs or make a false arrest; that if said deputy sheriffs committed an assault and battery upon the person of plaintiffs for no apparent reason or if a false arrest was made, such acts were entirely beyond the scope of their authority as deputy sheriffs.'
We agree with the able Circuit Judge in his finding that there was no genuine issue of material fact left in the case upon which the Sheriff could, as a matter of law,...
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Mendez v. Blackburn, 37257
...a district court of appeal which allegedly collides with prior decisions of this Court on the same point of law. Mendez v. Blackburn, 205 So.2d 697 (2d Dist.Ct.App.Fla.1968). We must determine the extent of liability of a Florida sheriff for the acts of a Petitioners Mendez are husband and ......