Fusco v. Proto

409 So. 2d 139, 1982 Fla. App. LEXIS 19055

• Court: District Court of Appeal of Florida
• Decided: January 27, 1982
• Docket: No. 80-2034
• Status: Published

Opinion

PER CURIAM.

In this action for malicious prosecution, which resulted in a jury verdict and judgment favorable to plaintiff, defendant contends that the court erred in denying its motion for directed verdict because, the facts relating to the existence of probable cause being without dispute, the trial court was required to rule as a matter of law that defendant had probable cause to commence the proceedings against the plaintiff.

In City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979), it was held that in an action for malicious prosecution, where the facts are not in dispute, the existence of probable cause is to be determined by the court as a matter of law. However, in this case the record discloses a factual dispute as to whether there was probable cause for the charges initiated by the defendant against plaintiff, and thus the court properly submitted the issue to the jury upon appropriate instructions.

AFFIRMED.

ANSTEAD, BERANEK and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.