Thorpe v. Cook

363 So. 2d 1181, 1978 Fla. App. LEXIS 16949

• Court: District Court of Appeal of Florida
• Decided: November 14, 1978
• Docket: No. 77-1349
• Status: Published

Opinion

BARKDULL, Judge.

In a malicious prosecution action, the trial court granted a summary judgment for the defendants. In said summary judgment, the following is found:

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“ORDERED AND ADJUDGED:

“1) That it affirmatively appears from the records that there is no genuine issue of material fact with respect to the filing by the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, of an Information against the Plaintiff, DALE THORP.

“2) That this Court, in view of the direct filing of the Information, feels constrained to enter its Order granting a Summary Judgment in favor of the Defendants based upon the decision of the Third District Court of Appeals in McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d Dist.1977), wherein it was held that:

‘When a prosecuting attorney files an information against a Defendant he conclusively determines that the evidence is adequate to establish probable cause to put the Defendant on trial.’

“3) That the existence or non-existence of additional triable and genuine issues of material facts concerning the presence of the remainder of the requisite elements to an action for a malicious prosecution have not been reached by this Court as it is the finding of this Court that the decision of McKinney, establishes the existence of probable cause for the proceeding complained of, the existence of which probable cause is fatal to the action at bar.

“4) That the Complaint fails to state a claim upon which relief can be granted, and that the Defendants, JOSEPH COOK and THE CITY OF MIAMI, are entitled to judgments in their favor as a matter of law.”

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Subsequent to the rendition of this order, and while the matter was pending in this court for review, the Supreme Court decided Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977) and, in this decision, it expressly overruled this court’s holding in McKinney v. Dade County, 341 So.2d 1061 (Fla.3d DCA 1977).

Therefore, the final summary judgment be and the same is hereby reversed and the matter is returned to the trial court, with directions to proceed with the cause.

This opinion shall not preclude the trial court from entertaining such other motions for summary judgment as may be filed by any of the parties.

Reversed and remanded, with directions.