Toomey v. Tolin, 73--657
| Decision Date | 27 March 1975 |
| Docket Number | No. 73--657,73--657 |
| Citation | 311 So.2d 678 |
| Parties | Edward M. TOOMEY, Appellant, v. City of Fort Lauderdale Police Officer Charles TOLIN et al., Appellees. |
| Court | Florida District Court of Appeals |
Harry G. Carratt, of Morgan, Carratt & O'Connor, Fort Lauderdale, for appellant.
Dieter K. Gunther, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for appellees.
We have for review final judgments for the defendants in an action for 'illegal arrest and false imprisonment' purportedly effected during the annual spring invasion of the Fort Lauderdale beach by young people from various parts of the country. Appellant's amended complaint contained three counts. The first sought compensatory damages for 'illegal arrest and false imprisonment'; the second sought punitive damages therefor; and the third sought compensatory and punitive damages, alleging appellees conspired to procure appellant's allegedly illegal arrest and unlawful imprisonment.
The case went to trial against all five appellees, Tolin, Barnett, Gerwins, Brady, and Levine. At the close of appellant's case the court directed verdicts in favor of all defendants on the conspiracy count and in favor of Gerwins, Brady, and Levine on the first two counts. At the conclusion of the evidence the court charged the jury 'that advice of counsel is a complete defense to an action for false arrest where it appears that the arrest was instituted in good faith in reliance upon the advice of an attorney given after a full and fair statement or otherwise making the attorney aware of all of the facts.' The court refused to charge the jury on punitive damages. The jury returned verdicts for the remaining defendants, Tolin and Barnett.
On appeal Toomey contends the trial court erred in directing verdicts for appellees Gerwins, Brady, and Levine; in not directing a verdict for him against Tolin and Barnett; and in giving the above quoted instruction that advice of counsel was a complete defense. (Appellant does not contest the propriety of the directed verdicts on the conspiracy count or of the refusal to charge the jury on the punitive damages count.) Though the evidence was conflicting, there is competent evidence from which the jury could have found appellant's arrest was lawful. However, of necessity we must treat the validity vel non of the questioned instruction since one cannot determine whether the jury found the arrest entirely lawful or whether they found that advice of counsel constituted probable cause for the arrest. We shall first set forth the facts in the light most favorable to the verdict and then deal with the question of the challenged jury instruction.
Appellant is co-lessee of the Ocean Mist Lounge on the beach area at Fort Lauderdale. During the annual spring vacation thousands of young people migrate to Fort Lauderdale and congregate on the beach and adjoining streets. As part of their crowd control program the police try to keep the pedestrians moving so that sidewalks and traffic arteries remain open. Prior to the arrest the police noticed that loud music from appellant's business establishment caused sidewalk pedestrians to stop and dance. The pedestrians spilled over into the street, interfering with vehicular traffic.
On March 20, 1972, two of the defendant-appellee police officers, Tolin and Barnett, entered the Ocean Mist Lounge and advised appellant that the music from the lounge was so loud it could be heard out on the street, in violation of the Fort Lauderdale antinoise ordinance, 1 and they requested him to rectify the situation. Appellant became irate and demanded to be shown the ordinance in question. Officer Tolin advised him he had 24 hours to comply with the ordinance and departed.
The following evening, March 21st, appellees Tolin and Barnett arrived at the lounge and found a similar condition existing with music from the band emanating from the lounge and a large group of people congregated outside on the sidewalk and street. Appellant was not then present at the scene. However, he arrived shortly thereafter. Tolin thereupon asked him if he would take measures to correct the situation and appellant said no, not until he saw the ordinance in question. Tolin advised appellant he (Tolin) did not have the ordinance with him and that appellant had had 24 hours to determine the provisions of the ordinance. When appellant refused to heed a final warning and further refused to take any action regarding the volume of the music, Tolin (being of the opinion that appellant was in violation of the antinoise ordinance) arrested him and turned him over to appellee Barnett, who had also seen that appellant was present when the alleged violation was being committed. Appellant was taken to a police station, booked, and detained for about two hours. Untimately, the charges against appellant were nolle prossed.
We hold that the foregoing facts as disclosed by the record in this cause would support a jury verdict in favor of Tolin and Barnett (without the instruction pertaining to advice of counsel) since they are sufficient to show that those officers had probable cause to arrest appellant for violating a municipal ordinance in their presence.
We turn now to the propriety of that instruction. The evidence reflects that...
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...of the necessarily defeated or identical claim standard. See Earle v. Benoit , 850 F.2d 836 (1st Cir. 1988) ; Toomey v. Tolin , 311 So.2d 678 (Fla. Dist. Ct. App. 1975).Our caselaw does not foreclose application of such standards when testing harmless error in the context of a motion for ju......
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...of counsel." Inherent to the defense is that defendant acted in good faith in the underlying proceedings. Toomey v. Tolin, 311 So. 2d 678, 681 (Fla. Dist. Ct. App. 1975). Plaintiff has made numerous allegations that Defendant did not act in good faith in the underlying collection action. Co......
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Miami-Dade County v. Asad, No. 3D07-363 (Fla. App. 3/11/2009)
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