Shidlowsky v. National Car Rental Systems, Inc., 76--571
| Decision Date | 29 March 1977 |
| Docket Number | No. 76--571,76--571 |
| Citation | 344 So.2d 903 |
| Parties | Howard SHIDLOWSKY, Appellant, v. NATIONAL CAR RENTAL SYSTEMS, INC., a Foreign Corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellant.
Mitchell M. Goldman, Miami, for appellees.
Before BARKDULL, HAVERFIELD and HUBBART, JJ.
Howard Shidlowsky, plaintiff in the trial court, appeals from a final judgment, entered pursuant to a directed verdict entered in favor of the defendants, Morse, Dyer, and National Car Rental Systems, Inc., in an action for malicious prosecution.
Shidlowsky filed a complaint against the defendants for malicious prosecution of a criminal charge for stealing $7,500.00, which National Car Rental had inadvertently overpaid a corporation of which Shidlowsky was a stockholder. Shidlowsky admitted this corporation received the overpayment and in the refusing to return the $7,500.00, because the money had been deposited in his corporate business account and the funds were no longer available. He continuously offered to pay back the money in $500.00 monthly installments, but each time was refused. Thereupon, the defendant (Dyer), on behalf of the appellee Corporation, instituted a criminal action which ultimately culminated in the charges being dropped by the Justice of the Peace, with the following notation thereon:
At the same time, Shidlowsky signed a promissory note to repay the $7,500.00 in $500.00 monthly installments. At the conclusion of Shidlowsky's case, the trial court directed a verdict in favor of the defendants. The court concluded that Shidlowsky failed to meet his burden of proving that the defendants acted without probable cause in swearing out a criminal warrant against him, and that the criminal proceedings had a bona fide termination in favor of Shidlowsky. This appeal ensued.
The proofs indicated that at the time the criminal proceeding came on to be heard before the Justice of the Peace, Mr. Shidlowsky and his lawyer, Mr. Moran, negotiated with Mr. Dyer on behalf of the named Corporations and settled the matter by the execution of a promissory note providing for payments at the rate of $500.00 per month. Both counsel agree that there are six elements to be established by a plaintiff in a malicious prosecution case, to wit: 1. A criminal proceeding was commenced or continued against plaintiff. 2. The defendant or defendants commenced or caused the commencement of the criminal proceedings against plaintiff. 3. The criminal proceeding had a bona fide termination in favor of the plaintiff. 4. There was no probable cause for causing the commencement of such criminal proceedings. 5. There was malice in causing the commencement of such criminal proceedings. 6. The plaintiff suffered damage.
Both counsel agree, and it appears from the record, that the trial court directed a verdict in this cause because of her feeling that the third prerequisite of a malicious prosecution cause had not been demonstrated by the dismissal of this case, and that the matter was controlled by Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla.3rd D.C.A. 1967), in that the criminal action was dismissed by a bargain between the parties upon the execution of the promissory note.
We reverse, and return the matter for a trial on the issue of whether or not it was, in fact, an abandonment of the criminal charges or a bargain to dismiss the charges because the defendant corporation in this case received nothing more from Shidlowsky upon the termination of the criminal proceeding before the Justice of the Peace than that which he had been offering all along. This is contrary to the factual situation in Freedman v. Crabro Motors, Inc., supra.
Therefore, for the reasons above stated, the final judgment based on the directed verdict be and the same is hereby reversed, and this matter is returned to the trial court for the purpose of according the plaintiff therein a new trial.
Reversed and remanded,...
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In re Std. Jury Instructions in Civil Cases -- Report No. 09-01
...terminated in favor of the claimant, an additional instruction on that issue will be necessary. See Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977); Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla. 3d DCA 1967).406.9 BURDEN OF PROOF ON CLAIM If the grea......
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