Gabriel CAZARES, Appellant/Cross-Appellee,
v.
The CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., a California corporation; Clyde
H. Wilson, Jr., Wilson, Wilson & Namack Chartered, et al., Appellees/Cross-
Appellants.
No. 82-1386.
District Court of Appeal of Florida,
Fifth District.
Dec. 15, 1983.
Rehearing Denied Jan. 27, 1984.
Actions for malicious prosecution and abuse of process were brought. The
Circuit Court, Volusia County, J. Robert Durden, J., dismissed both counts, and
plaintiff appealed. The District Court of Appeal, Cobb, J., held that: (1)
complaint for abuse of process was properly dismissed, where no act other than
wrongful filing of underlying lawsuit was alleged; (2) complaint for malicious
prosecution, which alleged lack of probable cause, was improperly dismissed on
grounds, determined from looking at underlying action, that defendant had
probable cause; and (3) though malicious prosecution action was brought
prematurely, amending of complaint following appellate court action cured
defect.
Affirmed in part; reversed in part; and remanded.
See also 429 So.2d 348.
[1] PROCESS
Abuse of process requires act constituting misuse of process after it issues,
and maliciousness or lack of foundation of asserted cause of action itself is
irrelevant.
[2] PRETRIAL PROCEDURE
Where plaintiff failed to assert act other than wrongful filing of underlying
lawsuit, complaint alleging abuse of process was required to be dismissed.
[3] MALICIOUS PROSECUTION
Elements of cause of action of malicious prosecution are commencement or
continuance of original criminal or civil judicial proceeding by present
defendant against plaintiff who was defendant in original proceeding, bona fide
termination in favor of present plaintiff, absence of probable cause for such
proceeding, presence of malice, and damage conforming to legal standards
resulting to plaintiff.
[4] PRETRIAL PROCEDURE
Function of motion to dismiss complaint is to raise as question of law
sufficiency of facts alleged to state cause of action.
[5] PRETRIAL PROCEDURE
For purpose of passing upon motion to dismiss complaint, court must assume all
facts alleged in complaint to be true.
[6] PRETRIAL PROCEDURE
Motion to dismiss must be decided on questions of law only.
[7] PRETRIAL PROCEDURE
Purpose of motion to dismiss is to ascertain if plaintiff has alleged good
cause of action, and court, when faced with motion to dismiss complaint for
failure to state cause of action, must confine itself strictly to allegations
within four corners of complaint.
[7] PRETRIAL PROCEDURE
Purpose of motion to dismiss is to ascertain if plaintiff has alleged good
cause of action, and court, when faced with motion to dismiss complaint for
failure to state cause of action, must confine itself strictly to allegations
within four corners of complaint.
[8] PRETRIAL PROCEDURE
Complaint for malicious prosecution was improperly dismissed based on review of
underlying action to determine if probable cause existed for bringing that
action, where malicious prosecution complaint alleged lack of probable cause.
[9] MALICIOUS PROSECUTION
Appeal of judgment extends time in which to bring malicious prosecution action
until after final appellate decision, and statute of limitations does not start
until appeal is decided or time for taking appeal expired, since cause of
action would not accrue until last element, which is termination favorable to
plaintiff, occurred. West's F.S.A. s 95.031(1).
[10] MALICIOUS PROSECUTION
Though initial malicious prosecution complaint was prematurely filed prior to
decision of appeal of underlying action, plaintiff's amendment of complaint
following issuance of appellate decision cured defect, precluding need for
dismissal and refiling of same amended complaint.
*443 C. Allen Watts, DeLand, Wagner, Cunningham, Vaughan & McLaughlin,
P.A., Tampa, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton,
Meadow & Olin, P.A., Miami, Walt Logan, St. Petersburg, for appellant/cross-
appellee.
J. Michael Hayes of Johnson, Paniello & Hayes, Tampa, for appellees/cross-
appellants.
Tobias Tolzmann, appellee, pro se.
COBB, Judge.
This appeal concerns the trial court's dismissal of a complaint attempting to
allege the torts of malicious prosecution in Count I and abuse of process in
Count II. For the reasons explicated below, we affirm the dismissal of Count
II but reverse the dismissal of Count I.
The appellant, Gabriel Cazares, originally filed the complaint on March 26,
1980, in Pinellas County. The cause was transferred to Volusia County, and
Cazares filed an *444 amended complaint on September 11, 1981, wherein he
alleged that the defendant, the Church of Scientology of California, Inc., had
maliciously sued him in federal court in 1976 for violation of its civil rights
and for defamation. That action terminated at the trial level in favor of
Cazares and, ultimately, that result was affirmed on appeal. See Church of
Scientology of California v. Cazares, 638 F.2d 1272 (5th Cir.1981).
[1][2] In November, 1981, the Church moved to dismiss both counts of Cazares'
amended complaint. In moving to dismiss the second count, abuse of process,
the Church asserted that no act, other than the wrongful filing of the
underlying lawsuit, was alleged. Without belaboring the point, we affirm the
trial court's dismissal with prejudice of Count II on the rationale of Blue
v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980), and McMurray v. U-Haul Co.,
Inc., 425 So.2d 1208 (Fla. 4th DCA 1983). As pointed out in those cases, abuse
of process requires an act constituting the misuse of process after it issues.
The maliciousness or lack of foundation of the asserted cause of action itself
is actually irrelevant to the tort of abuse of process. See Nash v. Walker,
78 So.2d 685 (Fla.1955).
The Church alleged that Count I should be dismissed on the bases that (1)
there was no bona fide termination of the original federal action at the time
Cazares filed suit, and (2) the ultimate facts alleged did not show that the
underlying lawsuit (the federal court action) was initiated without probable
cause. In dismissing the plaintiff's count for malicious prosecution, the
trial court stated in its order:
... The Court has read and considered the case of The Church of
Scientology vs. Gabriel Cazares, decided by the Fifth Circuit Court of Appeals
in its opinion found at 638 F.2d 1272 (1981), which is specifically cited as
part of the Plaintiffs' Amended Complaint and which sets forth in some detail
the factual basis for the allegations filed by the Defendant, THE CHURCH OF
SCIENTOLOGY, against GABRIEL CAZARES in a Title 42, Section 1983, Federal Civil
Rights and Defamation Action. The Court carefully considered this opinion, and
it is apparent on the face thereof that there was probable cause to bring the
stated cause of action under the facts set forth therein and the laws of the
State of Florida as set forth in the case of Heard vs. Mathis, 344 So.2d
641 [651], a decision of the First District Court of Appeals decided in 1977,
and other Florida precedents.
In ruling that there was probable cause to bring the stated action, the Court
notes that it is the Court's responsibility to determine whether or not there
was probable cause, and it is only other factual matters which are necessary to
be considered by the jury. See the case of Fee, Parker, and Lloyd, P.A. vs.
Sullivan, 379 So.2d 412, a decision of the Fourth District Court of Appeals of
Florida decided in 1980.
It is upon consideration thereof, ORDERED AND ADJUDGED by this Court that
Count I, as to the Defendant, CHURCH OF SCIENTOLOGY, and as to the Defendants,
CLYDE H. WILSON, JR., and WILSON, WILSON and NAMACK CHARTERED, be and the same
is hereby dismissed with prejudice. In so doing, this Court would further note
that there have been other persuasive arguments made by both Defendants for the
dismissal of Count I on two grounds: (1) That the Complaint in the present
suit was prematurely filed; and (2) That the federal suit was a privileged
petition for a redress of grievances under the First Amendment to the
Constitution of the United States of America. However, this Court feels that
there is no necessity at this time to reach these issues by reason of the
dismissal with prejudice of Count I as herein entered.
[3] The elements of the cause of action of malicious prosecution are as
follows:
(1) The commencement or continuance of an original criminal or civil judicial
proceeding;
*445 (2) Its legal causation by the present defendant against plaintiff
who was defendant in the original proceeding;
(3) Its bona fide termination in favor of the present plaintiff;
(4) The absence of probable cause for such proceeding;
(5) The presence of malice therein;
(6) Damage conforming to legal standards resulting to plaintiff.
Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So.
623 (1926); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980).
In the instant case, the point on appeal concerns element number 4, that of
the absence of probable cause. Here, the judge, on a motion to dismiss,
determined that probable cause did exist to bring the underlying suit, thus
requiring that the complaint be dismissed, since an element of the cause of
action was missing. The Church contends correctly that the question of
probable cause may be one of law for the court. See City of Pensacola v.
Owens, 369 So.2d 328 (Fla.1979) (where facts are undisputed, courts should
determine probable cause); Fee, Parker & Lloyd v. Sullivan, 379 So.2d 412
(Fla. 4th DCA), cert. denied, 388 So.2d 1119 (Fla.1980) (existence or lack
of probable cause is a pure question of law for the court to determine, with
the resolution of disputed issues of fact a question to be submitted to the
jury). In the instant case, however, the court determined the question too
soon. The cases relied on by the appellee [FN1] deal with situations where the
trial court ruled on the issue of probable cause when presented with either
motions for summary judgment or directed verdict, not on a motion to dismiss as
in the instant case.
FN1. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (directed
verdict); Gallucci v. Milavic, 100 So.2d 375 (Fla.1958) (directed
verdict); Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th
DCA 1981) (summary judgment); Fee, Parker & Lloyd v. Sullivan, 379
So.2d 412 (Fla. 4th DCA 1980) (appeal after final judgment and jury
verdict); Priest v. Groover, 289 So.2d 767 (Fla. 2d DCA 1974) (directed
verdict); Liabos v. Harman, 215 So.2d 487 (Fla. 2d DCA 1968) (summary
judgment).
[4][5][6][7][8] The function of a motion to dismiss a complaint is to raise as
a question of law the sufficiency of the facts alleged to state a cause of
action. For the purpose of passing upon a motion to dismiss, the court must
assume all the facts alleged in the complaint to be true. A motion to dismiss
must be decided on questions of law only. The purpose of a motion to dismiss
is to ascertain if the plaintiff has alleged a good cause of action, and the
court, when faced with a motion to dismiss a complaint for failure to state a
cause of action, must confine itself strictly to the allegations within the
four corners of the complaint. Kest v. Nathanson, 216 So.2d 233 (Fla. 4th
DCA 1968). See also Pizzi v. Central Bank & Trust Co., 250 So.2d 895
(Fla.1971); City of St. Augustine v. Authentic Old Jail, Inc., 388 So.2d
1044 (Fla. 5th DCA 1980). In the instant case, the complaint contained
allegations relating to the lack of probable cause (paragraphs 13, 15), but the
trial court determined from looking at the underlying action that indeed
probable cause did exist and dismissed the count.
Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968), is almost identical
to the instant case. In Kest, the plaintiff appealed from a final order
dismissing with prejudice his complaint in a malicious prosecution action. The
trial court's order dismissing the complaint stated that the court had taken
judicial notice of the underlying suit, and that an examination of this suit
showed that a motion for summary judgment was denied, which to the trial judge
indicated that probable cause for the suit was present, leading to a dismissal
of the malicious prosecution claim. [FN2]
FN2. Although the summary judgment was denied in the underlying action,
the plaintiff in the malicious prosecution suit was eventually victorious
in the underlying suit.
The Fourth District reversed, and after setting out the basic test on a motion
to dismiss and the elements required for malicious prosecution, stated:
*446 While it may be possible to show in later stages of this case that
the element of probable cause did exist for instituting the first action, the
posture of this action before the trial judge was on motion to dismiss the
complaint. It was improper for the trial court to go beyond the four corners
of the complaint when considering a motion to dismiss it and invoke
presumptions of fact based upon denial of motions that were filed in a prior
case. Such is not the province of the trial court in the process of
determining if a complaint can withstand a motion to dismiss and would afford
no procedural safeguard to the litigants involved.
Under these circumstances, we think that it cannot be said as a matter of law
that the allegations of the complaint failed to state a cause of action, or
that the complaint on its face shows that probable cause existed for
instituting the first action. We conclude, therefore, that the trial court was
in error in dismissing the complaint.
216 So.2d at 236. The actions of the trial court in Kest were the same
as those in the instant case, and a similar result is warranted.
We should also address the other major argument presented before the trial
court on the motion to dismiss, that of the complaint being prematurely filed.
At argument below, the Church contended that the cause of action for malicious
prosecution did not exist at the time that the suit was filed, since the
element of a termination in favor of the present plaintiff was missing, because
the appeal before the Fifth Circuit was still pending. Cazares responded that
the termination occurred at the time the district court acted and, therefore,
the complaint was proper.
The courts are divided on the effect of an appeal from a judgment in the
original action on the right to maintain an action for malicious prosecution.
Daniel v. Pappas, 16 F.2d 880 (8th Cir.1926). One line of authority is of
the view that the right to commence the action for malicious prosecution
accrues on the rendition of the judgment in the original proceeding, and that
the right to maintain the proceeding is not affected by an appeal. These
authorities hold, however, that the pendency of an appeal may be grounds for
staying the malicious prosecution action until the appeal has been
determined. See Levering v. National Bank of Morrow County, 87 Ohio St.
117, 100 N.E. 322 (1912). The greater weight of authority holds that the
pendency of an appeal from the judgment rendered in the proceeding complained
of precludes maintenance of a suit for malicious prosecution. See Breen v.
Shatz, 267 S.W.2d 942 (Ky.Ct.App.1954); Restatement (Second) of Torts s 674,
Comment j (1977); Annot. 41 A.L.R.2d 863; 54 C.J.S. Malicious
Prosecution s 56 (1955).
While no Florida state court cases could be found dealing with the effect of
an appeal on a malicious prosecution action, the United States District Court
for the Middle District of Florida addressed the issue in Roess v. St. Paul
Fire & Marine Ins. Co., 383 F.Supp. 1231 (M.D.Fla.1974).
In Roess, a dispute arose between an insurance company and an insured over
coverage on a malicious prosecution claim. The question before the court was
whether the underlying suit brought by a man named Koubek against Roess accrued
before or after the policy's effective date. The suit was determined by the
trial court prior to the issuance of the policy, but a final appellate
decision (by the Florida Supreme Court) was not issued until after the policy's
effective date. The court concluded that the date of favorable termination of
the underlying action was the operative date for the policy's effectiveness,
since favorable termination was seen as an indispensable ingredient in the
claim for malicious prosecution. The court still had to decide whether the
favorable termination was when the trial court decided the case, or when the
Supreme Court did, to determine whether coverage was present, and the court
opted for the date of the Supreme Court decision, stating:
Authority is cited for the proposition that the right to maintain an action
for malicious *447 prosecution accrues upon the rendition of judgment in the
trial court whether an appeal is taken or not. It appears, however, that the
weight of authority is to the contrary (Annot. 41 A.L.R.2d 863 (1953)); and
there is no reason to believe that the Florida courts would adopt a minority
view. In summary, then, the court is compelled to the result as a matter of
law that the Koubek claim against Roess for malicious prosecution did not
mature until the taxpayer's action was finally terminated in the Supreme Court
of Florida....
383 F.Supp. at 1235.
[9] Florida courts clearly hold that an action for malicious prosecution
cannot be filed until the original action is concluded, thus precluding any
counterclaims from being filed in the underlying action itself. See Waite
v. Ward, 413 So.2d 830 (Fla. 1st DCA 1982); American Salvage & Jobbing Co.
v. Salomon, 295 So.2d 710 (Fla. 3d DCA 1974). It seems that the weight of
authority is that the appeal of a judgment will extend the time for a malicious
prosecution action until after final appellate decision. This is the better
rule, since to allow otherwise would lead to possible useless malicious
prosecution actions when the plaintiff in the malicious prosecution action
fails to win the underlying case on appeal. Cazares' argument that this
results in a stopping and starting of the statute of limitations is without
merit. The statute of limitations for a malicious prosecution action would not
start until the appeal was decided, or the time for taking such an appeal had
expired, because the cause of action would not accrue until the last element
(termination favorable to the plaintiff) occurred. See s 95.031(1), Fla.Stat.
(1981).
Therefore, even though the trial court cited the wrong reasons for the
dismissal, it can be persuasively contended that the result was correct, since
the initial complaint here was filed on March 26, 1980, and the appeal of the
underlying action was not decided until March 9, 1981. Cazares claims,
however, that even if the complaint is deemed premature by this court, his
amending of the complaint on September 11, 1981, cured the defect, since it was
done after the Fifth Circuit opinion was issued. Cazares relies on Florida
Rule of Civil Procedure 1.190(d) and (e) [FN3] in support of his contention, as
well as Federal Rule of Civil Procedure 15(d).
FN3. Florida Rule of Civil Procedure 1.190(d) states:
Upon motion of a party the court may permit him, upon reasonable notice and
upon such terms as are just, to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the date of
the pleading sought to be supplemented. If the court deems it advisable
that the adverse party plead thereto, it shall so order, specifying the
time therefor.
Florida Rule of Civil Procedure 1.190(e) states:
At any time in furtherance of justice, upon such terms as may be just, the
court may permit any process, proceeding, pleading or record to be amended
or material supplemental matter to be set forth in an amended or
supplemental pleading. At every stage of the action the court must
disregard any error or defect in the proceedings which does not affect the
substantial rights of the parties.
Initially, it should be pointed out that Florida Rule of Civil Procedure
1.190(d), while modeled after the federal rule, is different, in that a key
sentence found in Federal Rule of Civil Procedure 15(d) does not appear in the
Florida provision. The federal rule provides as follows:
Upon motion of a party the court may, upon reasonable notice and upon such
terms as are just, permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the date of the
pleadings sought to be supplemented. Permission may be granted even though the
original pleading is defective in its statement of claim for relief or
defense. If the court deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifying the time therefor.
(Emphasis added.)
The language underlined was added to the federal rule in 1963. Prior to 1963,
*448 some cases held that where the original complaint fails to state a
claim upon which relief could be granted, leave to serve a supplemental
complaint must be denied because there is no proper claim before the court to
supplement. See 3 Moore's Federal Practice s 15.16[2]. The Florida rules were
adopted in 1966, after the new language was placed in the federal rule, but
without the federal language underlined above.
In Hasam Realty Corp. v. Dade County, 178 So.2d 747 (Fla. 3d DCA 1965),
cert. dismissed, 192 So.2d 499 (Fla.1966), the plaintiff appealed an order
dismissing his complaint against the county for denying his zoning variance as
premature. The Third District affirmed, noting that when the suit was filed,
the underlying claim was not final, since appeal to the Board of County
Commissioners had not yet been decided. The court stated:
If a plaintiff has no valid cause of action on the facts existing at the time
of filing suit, the defect cannot ordinarily be remedied by the accrual of one
while the suit is pending.
178 So.2d at 748.
Similarly, in Orlando Sports Stadium v. Sentinel Star Co., 316 So.2d 607
(Fla. 4th DCA 1975), dismissal of a complaint for libel was affirmed, since it
was deemed premature. In Orlando, the plaintiffs, after filing their
initial complaint against the Sentinel, sent a letter to the paper in an
attempt to comply with the notice and demand for retraction requirement for
defamation actions. After the letter was sent, the plaintiffs filed an amended
complaint, alleging for the first time their compliance with the statute. The
Fourth District affirmed the dismissal, noting:
A cause of action must exist and be complete before an action can be
commenced or, as sometimes stated, the existence or non-existence of a cause of
action is commonly dependent upon the state of facts existing when the action
was begun. As a general rule the plaintiff may not be permitted to cure the
defect of non-existence of a cause of action when suit was begun, by amendment
of his pleadings to cover subsequently accruing rights.
316 So.2d at 610. The court cited Hasam, and added that the same result is
compelled under Rule 1.190 as was under the prior rules.
Cazares cites two cases as contrary authority to Orlando and Hasam:
American National Growers Corp. v. Harris, 120 So.2d 212 (Fla. 2d DCA 1960),
and Scherer v. Scherer, 150 So.2d 496 (Fla. 3d DCA 1963). In American
National, a foreclosure action, the plaintiff was denied leave to file a
supplemental complaint to cure the defect of non-payment of intangible tax on
the mortgage notes. The plaintiff filed leave to amend, since it had claimed
it had not paid intangible tax due on the notes before the suit was filed and
that it had now done so and wished to allege it. The Florida statutes
prohibited enforcement of a mortgage by a court action unless the tax had been
paid. The appellate court noted that to file a supplemental complaint cannot
prejudice the defendant since payment of tax is a mere condition to enforcement
of the obligation on which the tax is owed, and delinquency does not work a
forfeiture. The court ruled that the plaintiff be given the opportunity to
amend and reversed.
In Scherer, the plaintiff's wife appealed an order granting appellee
husband's motion to amend his counterclaim to allege an act of adultery
committed after the original suit and counterclaim were filed. The plaintiff
contended that it was error to allow the amendment of the counterclaim by an
act committed some four months after the filing of the original counterclaim,
but the Third District affirmed. The court, in looking at the rules for
pleadings and the liberal view of amendment, saw the amended counterclaim as a
supplemental pleading since it concerned subject matter occurring after the
filing of the original counterclaim. The court saw the amended pleading as
seeking the same relief, but on a different ground, not as a new and materially
different suit. The court noted that the trial court could have dismissed the
suit *449 and required the parties to replead, but that it would have been
time consuming and wasteful.
A similar result was reached in O'Connell v. Citizens National Bank of
Hollywood, 254 So.2d 236 (Fla. 4th DCA 1971), where the court denied a motion
to dismiss a complaint based on the ground that the promissory note that was
the subject of the suit was unenforceable, since it was incomplete on the
original complaint. The plaintiff filed an amended complaint, alleging its
authority to complete the instrument and attached a completed note to the
complaint. The appellants contended the trial judge erred in denying the
motion, since no valid cause of action existed at the time of the filing of the
suit, and thus it could not be remedied, citing Hasam. The Fourth District
affirmed, stating:
It seems clear to us that appellants are in no different position than they
would have been had appellee voluntarily dismissed the original action,
completed the instrument in accordance with its alleged authority, and
thereafter filed a new and separate action on the completed note. Thus,
without deciding whether the court erred in allowing the amended complaint to
stand, it seems clear that appellants sustained no harm or prejudice, nor has
such action resulted in a miscarriage of justice, and hence the judgments from
which the appeal is taken should be affirmed.
254 So.2d at 237.
[10] We agree with the result reached by O'Connell. No harm results in
allowing the amended complaint to stand, since now it does allege all the
proper elements and it was filed after final appellate determination. This is
not a case where the complaint as it stands is defective, and while the
dismissal can be technically justified, it would serve no practical purpose
under the circumstances.
In summary, the trial court erred by going beyond the complaint to determine
that probable cause existed for the malicious prosecution action and in
dismissing the complaint on that ground. While the initial complaint was
premature, the amending of the complaint following the appellate court action
cured the defect, thus precluding the need for dismissal and a refiling of the
same amended complaint. Therefore, Count I of the complaint should be
reinstated.
AFFIRMED in part; REVERSED in part; and REMANDED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.