Third District Court of Appeal State of Florida
Opinion filed August 13, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D25-0111 Lower Tribunal No. 22-603-CC-05 ________________
Mark Buck, Appellant,
vs.
Lazaro Santos, et al., Appellees.
An Appeal from the County Court for Miami-Dade County, Miesha Darrough, Judge.
Law Office of David Scott, P.A., and David Scott (Weston), for appellant.
Harvey D. Rogers, P.A., and Harvey D. Rogers, for appellees.
Before SCALES, C.J., and EMAS and GORDO, JJ.
EMAS, J. INTRODUCTION
Mark Buck, the plaintiff below, appeals an order dismissing with
prejudice his complaint for malicious prosecution against Lazaro Santos and
Dianelys Perez Linares.
We affirm, and hold that the trial court properly dismissed Buck’s
malicious prosecution claim with prejudice, because the negotiated
settlement agreement between the parties, regarding the original
proceeding, precluded Buck from alleging that the termination of that original
proceeding constituted “a bona fide termination in favor of” Buck—an
essential element to a cause of action for malicious prosecution.
FACTUAL AND PROCEDURAL BACKGROUND
In 2020, Santos and Linares, on behalf of their eleven-year-old child,
filed a petition for injunction against sexual violence, pursuant to section
784.046, Florida Statutes (2020), alleging that Buck 1 committed sexual
violence against their minor child. Among the allegations contained in the
petition for injunction:
1 Santos and Linares also filed a separate petition against Buck’s wife (Yolanda Toricella Buck), containing virtually identical allegations as those made in the petition against Mark Buck. Yolanda Toricella Buck was originally a plaintiff in the malicious prosecution action, but withdrew from the case prior to entry of the order on appeal, and is not a party to this appeal.
2 - “There were multiple occasions where [Buck] touched [the child] in
her private areas and [the child] was terrified to tell her parents”;
- The child’s phone “had evidence of nude pictures and inappropriate
messages that [Buck] had sent to [the child]”;
- Buck “created social media pages on Facebook and Instagram
dedicated to [the child] with hundreds of pictures Buck had taken of
[the child] without anyone’s consent”;
- Buck has “made sexual comments referring to [the child] on those
pages as well”; and
- Buck had gone into the bathroom to see if the minor child “knew
how to properly shower.”
The trial court issued a temporary injunction, which prohibited Buck
from having any contact with the minor child.2 The final hearing on the
petition for injunction against sexual violence was reset several times over
the period of a year, and each time the temporary injunction against Buck
2 The temporary injunction provided, inter alia:
Respondent [Buck] shall have no contact with Petitioner [the child]. Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other manner. Further, Respondent shall not contact or have any third party contact anyone connected with Petitioner’s employment or school to inquire about Petitioner ot to send any messages to Petitioner.
3 was extended. During the pendency of the petition for injunction, the parties
negotiated and executed a settlement agreement. The day following
execution of the settlement agreement, Santos and Linares moved to
dismiss the temporary injunction. The trial court granted the motion,
dismissed the temporary injunction, and no further action was taken on the
petition for injunction. The court’s memo of disposition noted: “Parties have
worked out agreement where Respondent [Buck] will stay away from minor
child until she reaches age 18 in exchange for an agreement to dismiss the
temp [temporary injunction].”
In 2022, Buck filed suit against Santos and Linares, asserting a claim
for malicious prosecution. Attached to the complaint was a copy of the four-
page negotiated settlement agreement (entitled “non-disclosure agreement”)
signed by Buck and by Santos (on behalf of the minor child). In response,
Santos and Linares filed a motion to dismiss, contending that the dismissal
of the sexual violence injunction petition was the result of the negotiated
settlement agreement between the parties, and that therefore the dismissal
of the sexual violence injunction petition was not a “bona fide termination of
that proceeding” in favor of Buck.
Following a hearing, the trial court granted the motion to dismiss with
prejudice. The court found that in light of the settlement agreement resulting
4 in the motion for dismissal of the temporary injunction (which motion was
granted by the trial court), Buck could not establish there was a bona fide
termination of the sexual violence injunction proceeding in his favor.
On appeal, Buck asserts that the trial court erred in dismissing with
prejudice his claim for malicious prosecution by finding he could not allege
or establish a “bona fide termination” of the sexual violence injunction
proceeding in his favor. He contends that the settlement agreement did not
preclude a determination that there was a bona fide termination in his favor.
ANALYSIS AND DISCUSSION
We review the trial court’s dismissal order de novo. Steinmetz v.
Pickholtz, No. 3D24-0417, 2025 WL 1646405 (Fla. 3d DCA June 11, 2025);
Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089
(Fla. 3d DCA 2014). We review the “with prejudice” aspect of the dismissal
order under an abuse of discretion standard. Pesce v. Morgan, 388 So. 3d
1107, 1108 (Fla. 3d DCA 2024).
As the Florida Supreme Court announced in Alamo Rent-A-Car, Inc. v.
Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994):
In order to prevail in a malicious prosecution action, a plaintiff must establish that: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original
5 proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution.
(Emphasis added) (citations omitted).
“A bona fide termination of the proceeding in the plaintiff’s favor is an
essential element of a malicious prosecution action.” Union Oil of Cal. Amsco
Div. v. Watson, 468 So. 2d 349, 353 (Fla. 3d DCA 1985). It was Buck’s
burden to allege facts which, if proven, would establish that the termination
of the sexual violence action was “bona fide.” Mancusi, 632 So. 2d at 1356.
Although “bargaining or negotiating, in and of itself, does not always
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Third District Court of Appeal State of Florida
Opinion filed August 13, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D25-0111 Lower Tribunal No. 22-603-CC-05 ________________
Mark Buck, Appellant,
vs.
Lazaro Santos, et al., Appellees.
An Appeal from the County Court for Miami-Dade County, Miesha Darrough, Judge.
Law Office of David Scott, P.A., and David Scott (Weston), for appellant.
Harvey D. Rogers, P.A., and Harvey D. Rogers, for appellees.
Before SCALES, C.J., and EMAS and GORDO, JJ.
EMAS, J. INTRODUCTION
Mark Buck, the plaintiff below, appeals an order dismissing with
prejudice his complaint for malicious prosecution against Lazaro Santos and
Dianelys Perez Linares.
We affirm, and hold that the trial court properly dismissed Buck’s
malicious prosecution claim with prejudice, because the negotiated
settlement agreement between the parties, regarding the original
proceeding, precluded Buck from alleging that the termination of that original
proceeding constituted “a bona fide termination in favor of” Buck—an
essential element to a cause of action for malicious prosecution.
FACTUAL AND PROCEDURAL BACKGROUND
In 2020, Santos and Linares, on behalf of their eleven-year-old child,
filed a petition for injunction against sexual violence, pursuant to section
784.046, Florida Statutes (2020), alleging that Buck 1 committed sexual
violence against their minor child. Among the allegations contained in the
petition for injunction:
1 Santos and Linares also filed a separate petition against Buck’s wife (Yolanda Toricella Buck), containing virtually identical allegations as those made in the petition against Mark Buck. Yolanda Toricella Buck was originally a plaintiff in the malicious prosecution action, but withdrew from the case prior to entry of the order on appeal, and is not a party to this appeal.
2 - “There were multiple occasions where [Buck] touched [the child] in
her private areas and [the child] was terrified to tell her parents”;
- The child’s phone “had evidence of nude pictures and inappropriate
messages that [Buck] had sent to [the child]”;
- Buck “created social media pages on Facebook and Instagram
dedicated to [the child] with hundreds of pictures Buck had taken of
[the child] without anyone’s consent”;
- Buck has “made sexual comments referring to [the child] on those
pages as well”; and
- Buck had gone into the bathroom to see if the minor child “knew
how to properly shower.”
The trial court issued a temporary injunction, which prohibited Buck
from having any contact with the minor child.2 The final hearing on the
petition for injunction against sexual violence was reset several times over
the period of a year, and each time the temporary injunction against Buck
2 The temporary injunction provided, inter alia:
Respondent [Buck] shall have no contact with Petitioner [the child]. Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other manner. Further, Respondent shall not contact or have any third party contact anyone connected with Petitioner’s employment or school to inquire about Petitioner ot to send any messages to Petitioner.
3 was extended. During the pendency of the petition for injunction, the parties
negotiated and executed a settlement agreement. The day following
execution of the settlement agreement, Santos and Linares moved to
dismiss the temporary injunction. The trial court granted the motion,
dismissed the temporary injunction, and no further action was taken on the
petition for injunction. The court’s memo of disposition noted: “Parties have
worked out agreement where Respondent [Buck] will stay away from minor
child until she reaches age 18 in exchange for an agreement to dismiss the
temp [temporary injunction].”
In 2022, Buck filed suit against Santos and Linares, asserting a claim
for malicious prosecution. Attached to the complaint was a copy of the four-
page negotiated settlement agreement (entitled “non-disclosure agreement”)
signed by Buck and by Santos (on behalf of the minor child). In response,
Santos and Linares filed a motion to dismiss, contending that the dismissal
of the sexual violence injunction petition was the result of the negotiated
settlement agreement between the parties, and that therefore the dismissal
of the sexual violence injunction petition was not a “bona fide termination of
that proceeding” in favor of Buck.
Following a hearing, the trial court granted the motion to dismiss with
prejudice. The court found that in light of the settlement agreement resulting
4 in the motion for dismissal of the temporary injunction (which motion was
granted by the trial court), Buck could not establish there was a bona fide
termination of the sexual violence injunction proceeding in his favor.
On appeal, Buck asserts that the trial court erred in dismissing with
prejudice his claim for malicious prosecution by finding he could not allege
or establish a “bona fide termination” of the sexual violence injunction
proceeding in his favor. He contends that the settlement agreement did not
preclude a determination that there was a bona fide termination in his favor.
ANALYSIS AND DISCUSSION
We review the trial court’s dismissal order de novo. Steinmetz v.
Pickholtz, No. 3D24-0417, 2025 WL 1646405 (Fla. 3d DCA June 11, 2025);
Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089
(Fla. 3d DCA 2014). We review the “with prejudice” aspect of the dismissal
order under an abuse of discretion standard. Pesce v. Morgan, 388 So. 3d
1107, 1108 (Fla. 3d DCA 2024).
As the Florida Supreme Court announced in Alamo Rent-A-Car, Inc. v.
Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994):
In order to prevail in a malicious prosecution action, a plaintiff must establish that: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original
5 proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution.
(Emphasis added) (citations omitted).
“A bona fide termination of the proceeding in the plaintiff’s favor is an
essential element of a malicious prosecution action.” Union Oil of Cal. Amsco
Div. v. Watson, 468 So. 2d 349, 353 (Fla. 3d DCA 1985). It was Buck’s
burden to allege facts which, if proven, would establish that the termination
of the sexual violence action was “bona fide.” Mancusi, 632 So. 2d at 1356.
Although “bargaining or negotiating, in and of itself, does not always
negate the bona fide nature of the termination,” it is clear that “a bona fide
termination is one that indicates the innocence of the accused and is one
that has not been obtained by the accused on a bargained-for promise.” Id.;
see also Watson, 468 So. 2d at 354 (noting that because a settlement
“reflects ambiguously on the merits of the action,” it is “generally not deemed
a favorable termination of the proceedings”); Della-Donna v. Nova Univ.,
Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987) (holding that “a bona fide
termination favorable to plaintiff does not encompass a termination resulting
from negotiation, settlement, or consent.”); Doss v. Bank of Am., N.A., 857
6 So. 2d 991, 994 (Fla. 5th DCA 2003) (explaining that “bona fide termination”
“is a fancy phrase which means that the first suit, on which the malicious
prosecution suit is based, ended in a manner indicating the original
defendant’s (and current plaintiff’s) innocence of the charges or allegations
contained in the first suit, so that a court handling the malicious prosecution
suit, can conclude with confidence, that the termination of the first suit was
not only favorable to the defendant in that suit, but also that it demonstrated
the first suit’s lack of merit.”).
Here, pursuant to the terms of the negotiated settlement agreement,
Buck agreed that he would:
- Stay away from the minor child;
- Have no direct or indirect communication, by any means, with the
minor child; and
- Not share, post, disseminate, publish or display any photographs or
videos of the child, or any posts related to the child, on social media
sites.
It was pursuant to the terms of this negotiated settlement that Santos
agreed to dismissal of the temporary injunction and the petition for sexual
violence injunction. By its terms, this agreement (and Buck’s obligations
7 described above) is to remain in force until the child turns eighteen (the child
was twelve years old when the agreement was executed).
It is self-evident that the settlement agreement negotiated between the
parties was a “bargained-for promise,” and did not “indicate[] the innocence
of” Buck. Mancusi, 632 So. 2d at 1356. Indeed, Buck’s obligations under
the negotiated settlement agreement approximate the very same obligations
imposed on Buck by the trial court’s temporary injunction (and which could
have been imposed in a permanent injunction if a final hearing had been held
and petitioner prevailed). The parties further agreed these obligations would
remain in force until the child turns 18.
While it’s true that the agreement provided that the parties “are
entering into this agreement for their mutual benefit,” and further provided
that the “no-contact” provision was mutual (“the Parties will refrain from
having contact with one another”), the affirmative obligations unilaterally
imposed upon Buck were much more explicit, providing for example that
Buck “will not, in any way, share, post, disseminate, publish or display
photographs or videos of the child, or posts related to the child, on social
media sites, specifically: Facebook, Twitter, Instagram, TikTok or Snapchat.”
At most, the termination of the petition for injunction of sexual violence
proceeding was “neutral” and Buck could not allege or establish there was a
8 bona fide termination in his favor. See Della-Donna, 512 So. 2d at 1055 (“The
voluntary dismissal of litigation as a result of settlement is neutral to a
favorable termination and, in the instant case, is fatal to the malicious
prosecution claim.”).
CONCLUSION
We hold that the trial court properly dismissed Buck’s malicious
prosecution claim with prejudice, because the terms of the negotiated
settlement agreement between the parties, regarding the original
proceeding, precluded Buck from alleging that the termination of that original
proceeding constituted “a bona fide termination in favor of” Buck—an
essential element to a cause of action for malicious prosecution.
Affirmed.