CHARLES RYAN HICKMAN AND CAROL CAVANAGH HICKMAN, APPELLANTS,
v.
BARCLAY'S INTERNATIONAL REALTY, INC., ROBERT WYNER, AND BJORN Q. AASEROD, APPELLEES

Fla. 4th DCA | 2009-06-24
No. 4D08-115
HAZOURI, J., and SHAHOOD, GEORGE A., Senior Judge, concur.
16 So. 3d 154 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The appellants Hickman sued appellee Wyner for malicious prosecution and for breach of a duty to report truthfully to police. The trial court granted summary judgment for Wyner on both claims. The appellate court affirmed, finding no material factual disputes on the elements of malicious prosecution and no recognized Florida tort for negligently swearing out a warrant.


Holding

The court affirmed summary judgment on both claims. On the malicious prosecution claim, the trial court correctly determined there was no legal causation by Wyner and probable cause for prosecution was present. On the second claim, Florida does not recognize a separate tort for negligently swearing out a warrant; such claims may only be brought as malicious prosecution suits.


Headnotes

[1] To prove malicious prosecution, a plaintiff must establish the commencement of a judicial proceeding, legal causation by the defendant, bona fide termination in favor of…

[2] A defendant is not the legal cause of a judicial proceeding when the decision to prosecute is made by the state attorney after an independent investigation and review of…

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Key Quotes

“In order to prove a cause of action for malicious prosecution a plaintiff must prove six elements: "1) the commencement of a judicial proceeding; 2) its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for the prosecution; 5) malice; [and] 6) damages."”

Establishes the legal standard for malicious prosecution claims that courts apply

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Facts & Procedural History

Hickman was prosecuted for misdemeanor trespass, battery, and petit theft based on an incident involving Wyner. Hickman was ultimately acquitted of al…

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Opinion of the Court
WARNER, J.

WARNER, J.

We affirm the final summary judgment in this malicious prosecution action on the authority of Dorf v. Usher, 514 So.2d 68 (Fla. 4th DCA 1987).

In order to prove a cause of action for malicious prosecution a plaintiff must prove six elements: “1) the commencement of a judicial proceeding; 2) its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for the prosecution; 5) malice; [and] 6) damages.” Id. at 69.

Appellant Hickman showed that a prosecution had been commenced against him for misdemeanor trespass, battery, and petit theft based upon an incident involving the appellee Wyner. He was ultimately acquitted of all charges. However, the trial court determined that the facts were undisputed that Wyner was not the legal cause of the present proceeding and further that probable cause for prosecution was present. As in Dor/,' prior to filing charges against appellant, the officer in charge investigated the case thoroughly and interviewed both the appellant and appellee, obtained other documents and statements, and submitted the report to the state attorney’s office. Both the assistant state attorney assigned to intake evaluation and the assistant state attorney assigned to prosecute reviewed the file and the statements. The intake attorney forwarded the file on for prosecution. The trial attorney filed the charges only after concluding that she had a good faith basis for prosecution. She testified that appel-lee did not pressure the state attorney to prosecute appellant. Under these circumstances, the trial court correctly concluded that no material issues of fact remained on the issue of legal causation by the defendant. Although the accounts of the incident from appellant and appellee diverged *156on who did what to whom, there was no dispute that even under Hickman’s account Wyner would have justifiably believed that Hickman was trespassing when Wyner came upon him in his neighbor’s home.

The trial court also granted summary judgment on Hickman’s second cause of action which alleged that Wyner owed Hickman a duty to report the incident truthfully to the police. Hickman alleged that Wyner breached this duty when falsely telling officers, among other things, that Hickman grabbed Wyner and forced entry into the house. In so doing, he alleged that “Wyner created a foreseeable zone of harm to Hickman.” As the trial court recognized, this is not a recognized cause of action in Florida. “Florida courts have never recognized a separate tort for ‘negligently’ swearing out a warrant for arrest. Such cases may be brought only in the form of civil suits for malicious prosecution.” Pokorny v. First Fed. Sav. & Loan Ass’n. of Largo, 382 So.2d 678, 683 (Fla.1980).

Affirmed.

HAZOURI, J., and SHAHOOD, GEORGE A., Senior Judge, concur.


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Citator

Cited By

  • Rivernider v. Meyer, 174 So. 3d 602 (Fla. 4th DCA 2015)
    …its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for the prosecution; 5) malice; [and] 6) damages. Hickman v. Barclay’s Int’l Realty, Inc., 16 So. 3d 154, 155 (Fla. 4th DCA 2009), rev. denied, 37 So. 3d 847 (Fla.2010) (quoting Dorf v. Usher, 514 So. 2d 68, 69 (Fla. 4th DCA 1987)). Regarding the absence of probable cause, the Florida Supreme Court has explained: In an action for malicious prosecutio…
  • Albo v. Gillen, 29 So. 3d 397 (Fla. 3d DCA 2010)
    …PER CURIAM. Affirmed. See Hickman v. Barclay’s Int’l Realty, Inc., 16 So. 3d 154 (Fla. 4th DCA 2009).…

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