IN THE SUPREME COURT OF FLORIDA CASE NO. SC (Lower Tribunal Case No. 3D07-363) AHMAD ASAD, TONY GARCIA AND NOEL RIVERA, Petitioners, vs.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC (Lower Tribunal Case No. 3D07-363) AHMAD ASAD, TONY GARCIA AND NOEL RIVERA, Petitioners, vs. MIAMI-DADE COUNTY AND SGT. PATRICIA SEDANO, Respondents. ON DISCRETIONARY JURISDICTION TO REVIEW A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT RESPONDENTS, MIAMI-DADE COUNTY S AND SGT. PATRICIA SEDANO S JURISDICTIONAL BRIEF R. A. CUEVAS, JR. MIAMI-DADE COUNTY ATTORNEY Stephen P. Clark Center, Suite N.W. 1st Street Miami, Florida Telephone: (305) Facsimile: (305) By: Eric K. Gressman Assistant County Attorney Florida Bar No

2 TABLE OF CONTENTS Page TABLE OF CITATIONS... ii SUMMARY OF ARGUMENT... 1 ARGUMENT THE DECISION OF THE LOWER DISTRICT COURT IS NOT IN DIRECT OR EXPRESS CONFLICT WITH OPINIONS OF THIS COURT OR ANY DISTRICT COURT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS Cases Page(s) Brodnicki v. City of Omaha, 75 F.3d 1261 (8th Cir. 1996)... 4 City of Miami Beach v. Bretagna, 190 So.2d 364 (Fla. 3d DCA 1966)... 4 City of St. Petersburg v. Hackman, 672 So.2d 42 (Fla. 2d DCA 1996)... 4 Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla. 1977)... 8, 9 Cripe v. Atlantic First National Bank, 422 So.2d 820 (Fla. 1982)... 9 Delgado v. Strong, 360 So.2d 73 (Fla. 1978)... 9 Dept. of H.R.S. v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 5 Fid. & Deposit Co. v. Adkins, 222 Ala. 17, 130 So. 552 (1930)... 4 Glass v. Parrish, 51 So.2d 717 (Fla. 1951)... 7, 8 Harris v. Louis State Bank, 482 So.2d 1378 (Fla. 1st DCA 1986)... 3, 4, 5, 6, 7 Levine v. Hunt, 932 So.2d 1292 (Fla. 2d DCA 2006)... 4 Miami-Dade County v. Asad, 78 So.3d 660 (Fla. 3d DCA 2012)... 1, passim ii

4 TABLE OF CITATIONS Cases Page(s) State v. Jackson, 281 So. 2d 353 (Fla. 1973)... 7 White v. Miami Home Milk Producers Ass n, 143 Fla. 518, 197 So. 125 (Fla. 1940)... 3 Wilson v. O Neal, 118 So.2d 101 (Fla. 1st DCA 1960)... 3 Florida Statutes (9), Fla. Stat. (1999)... 7, (a)(2)(A)(iv), Fla. R. App. P iii

5 SUMMARY OF ARGUMENT Petitioners have sought discretionary jurisdiction based on alleged conflict between the instant Third District Court opinion and the precedents of the Supreme Court and other District Courts of Appeal. However, none of the cases cited as conflicting with Asad expressly or directly conflict. Ruling that Defendants were entitled to a summary judgment or a directed verdict on the malicious prosecution claim is consistent with prior precedent. First, Plaintiff misapprehends the rulings in Asad and another district court opinion to imply conflict between Asad and another district court. In actuality, there is no conflict, because, first, a question of fact as to probable cause for an arrest cannot serve as a basis for allowing a jury to infer malice in a malicious prosecution claim. The jury must have before it evidence of a lack of probable cause for the prosecution in order to infer malice required in a malicious claim. Moreover, the ruling concerning malice is dictum, because the Third District also found that the unrebutted evidence supported the fact that the State Attorney s actions immunized Sergeant Patricia Sedano from any claim of malicious prosecution. Finally, dictum and implied conflict cannot serve as a basis for this Honorable Court s conflict jurisdiction. In addition, Petitioners challenge the alleged finding of a presumption that the filing of an information by a State Attorney immunizes Sgt. Sedano 1

6 from a malicious prosecution claim. However, the Third District relied on unrebutted evidence that Sgt. Sedano made a complete disclosure to the State Attorney and the State Attorney made the decision to prosecute herein. Under such circumstances, distinguishable from other precedent where such a complete disclosure was not made, the Third District did not conflict with any ruling of this Honorable Court or another District Court of Appeal. Finally, in a conclusory fashion, Petitioners claim that the instant opinion conflicts with general case law saying that an appellate court should not make findings that are solely the province of the jury. However, the Third District Court of Appeal relied on unrebutted evidence for its opinion and did not in any way intrude upon the province of the jury. In conclusion, there is no basis for conflict jurisdiction. 2

7 ARGUMENT THE DECISION OF THE LOWER DISTRICT COURT IS NOT IN DIRECT OR EXPRESS CONFLICT WITH OPINIONS OF THIS COURT OR ANY DISTRICT COURT. Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv) provide that this Honorable Court s conflict jurisdiction is limited to decisions of district courts of appeal that expressly and directly conflict with a decision of another district court of appeal or of the supreme court on same question of law. (emphasis added). Petitioners have failed to show any express and direct conflict between Miami-Dade County v. Asad, 78 So.3d 660 (Fla. 3d DCA 2012), and any decision of this Honorable Court or another district court. Petitioners jurisdictional brief and corrected jurisdictional brief argue on page 5 that the Third District s opinion is in conflict with Harris v. Louis State Bank, 482 So.2d 1378, 1381 (Fla. 1st DCA 1986). Harris is not in conflict with the case at bar. The Third District cites White v. Miami Home Milk Producers Ass n, 143 Fla. 518, 520, 197 So. 125, 126 (Fla. 1940), and Wilson v. O Neal, 118 So.2d 101, 105 (Fla. 1st DCA 1960), for the proposition that malice is not synonymous with a want of probable cause and is not only an essential element of malicious prosecution but also the gist of the cause of action. Asad, 78 So.3d at 664. White, like Harris, holds that malice can be inferred from a lack of probable cause for a prosecution. Petitioners misapprehend Harris, which is 3

8 consistent with Asad. Harris, 482 So.2d at 1381, states that the presence of malice may be inferred from the absence of probable cause for such prosecution (emphasis added). Contrary to Petitioners position, Harris does not hold that a jury may infer malice in the prosecution from proof of an absence of probable cause at the time of the arrest. The timing of an arrest versus a prosecution, as well as the legal standards and the burdens of proof concerning probable cause for a prosecution as opposed to an arrest are different. Thus, Petitioners position that Harris impliedly conflicts with Asad is wrong. Levine v. Hunt, 932 So.2d 1292, 1293 (Fla. 2d DCA 2006), holds that Plaintiff must prove in a malicious prosecution six essential elements including the absence of probable cause for the prosecution of such proceeding (emphasis added). In contrast, a defendant must prove probable cause existed only at the time of the arrest and later events concerning the prosecution are irrelevant to a false arrest claim. Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996); City of St. Petersburg v. Hackman, 672 So.2d 42, 44 (Fla. 2d DCA 1996); City of Miami Beach v. Bretagna, 190 So.2d 364, 365 (Fla. 3d DCA 1966); Fid. & Deposit Co. v. Adkins, 222 Ala. 17, 130 So. 552 (1930). While absence of probable cause for a prosecution may allow a jury to infer malice, absence of probable cause for an arrest does not allow for an inference that the prosecution is malicious. Thus, Petitioners argument that the remand 4

9 for determination of the probable cause for an arrest conflicts with entry of a summary judgment or directed verdict for defendant on the malicious prosecution claim lacks merit. Petitioners argue that the instant Third District opinion impliedly conflicts with Harris. Petitioners maintain that the remand to the trial court to determine if a trial is necessary on the false arrest claim creates implied conflict with Harris, since malice can be inferred from a lack of probable cause for the prosecution. However, the evidence in support of a lack of probable cause for the arrest at trial was tainted by admission of evidence of the nolle prosequi. Asad, 78 So.3d at The Third District held that the jury instructions compounded the error and led to a verdict finding false arrest based on a nolle prosequi. Id. at 608. Such evidence is not a proper consideration for a jury to determine even a lack of probable cause for an arrest. Thus, in no way is the Third District in direct conflict with Harris because there was no viable evidence of a lack of probable cause, presented at trial, for the prosecution or the arrest. Moreover, Petitioners argument that, based on the remand for a trial on the false arrest claim, there is an implied conflict as opposed to direct conflict with Harris cannot serve as a basis for this Honorable Court s jurisdiction. Dept. of H.R.S. v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 5

10 889 (Fla. 1986). Petitioners claim that the end portion of the lower court s opinion which remands this matter for a review of the false arrest claim or for a new trial on the false arrest claim is somehow in conflict with the concept that the jury improperly found malice. Petitioners claim that there is a question of fact as to probable cause and thus the jury could properly find implied malice. However, the decision is consistent with Harris in that the jury found actual malice despite Plaintiffs expert s opinion that there was no malice and despite the fact that the officer was immune from a malicious prosecution claim because the State Attorney assumed the responsibility for prosecuting Plaintiffs. Asad, 78 So.3d at There is no internal inconsistency in finding that Sgt. Sedano was immune from a malicious prosecution claim and that there was no actual malice proven herein which is in accord with the decision in Harris. The finding of no probable cause, as explained in the instant Third District opinion was tainted by considerations of the facts concerning a nolle prosequi by the prosecutor. Thus, the finding of no probable cause for the arrest was improper. Asad, 78 So.3d at Such an improper finding cannot serve as a basis for finding malicious prosecution. Such a finding by the Third District is consistent with White and Wilson and not in conflict with Harris. Petitioners claim that the decision herein conflicts with the law concerning the ability of a jury to find implied, as opposed to actual, malice, as 6

11 described in Harris. However, there is no showing that the Third District was referring to implied, as opposed to actual malice. Any finding by the Third District as to actual malice would in no way conflict with the holding as to implied malice in Harris. Additionally, the ruling on malice is dictum, because the immunity of Sgt. Sedano from a malicious prosecution claim, as described in the Third District opinion, constitutes an independent and complete bar to liability. Asad, 78 So.3d at Thus, any ruling on the jury s decision finding malice can not constitute a direct and express conflict since it is obiter dictum. Dictum cannot serve as a basis for conflict jurisdiction. State v. Jackson, 281 So. 2d 353, 355 (Fla. 1973). Dictum provides no basis for jurisdiction since it is neither a question of law nor a decision on a question of law. Id. at 355. Petitioners second point that the instant decision conflicts with Glass v. Parrish, 51 So.2d 717, 721 (Fla. 1951), is incorrect. Glass does not hold that when an officer consults closely with the prosecutor that the question of whether or not the officer is liable for malicious prosecution is always a question of fact for the jury. In the instant case, the sole evidence at trial dictated that, pursuant to (9), Florida Statutes (1999), the officer was not liable. In the instant case, Kathryn Slye, the Assistant State Attorney who was assigned the case involving the beating of Mr. Walker, testified that the detective brought her all 7

12 the documents, reports, statements and line-ups, which she reviewed before making a charging decision, and, as a result, she spent extra time with Sgt. Sedano and with others to make sure that all the appropriate information was had before charges were brought. Asad, 78 So.3d at 667. Without dispute, Assistant State Attorney Slye made the decision to file charges against the individuals. Id. at 667. Under such circumstances, distinguishable from Glass, the Third District in no way conflicted with Glass in ruling that Sgt. Sedano was immunized from a malicious prosecution claim by the intervening acts of the State Attorney. Glass establishes that advice of counsel is a defense to an action for malicious prosecution where a complete and full disclosure has been made to the attorney. Id. at 721. Unlike Glass, the facts herein are undisputed that Sgt. Sedano provided complete and full disclosure to the State Attorney. Miami- Dade County v. Asad, 78 So. 3d 660, (Fla. 3d DCA 2012). In contrast, Mr. Glass created a question of fact by admitting that he did not provide a complete and full disclosure to the attorney. Glass, 51 So. 2d at 720. Petitioners third point is that Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181, (Fla. 1977), states that the filing of an information by a prosecutor does not create a presumption that probable cause existed to defeat a lawsuit for malicious prosecution. Nowhere in the decision does the Third District maintain that there was any such presumption that probable cause 8

13 existed by the filing of an information by a prosecutor. The unrebutted evidence at trial that the decision to charge was solely that of the Assistant State Attorney immunized Sgt. Sedano from a malicious prosecution claim. Asad, 78 So.3d at Such unrebutted evidence provides the basis for a summary judgment or a directed verdict on the malicious prosecution claim, not any presumption. Thus, the Third District does not conflict with Scarbrough. The fourth claim made by Petitioners is that somehow the Third District has contravened Cripe v. Atlantic First National Bank, 422 So.2d 820, 823 (Fla. 1982), and Delgado v. Strong, 360 So.2d 73, 73 (Fla. 1978), which indicate that an appellate court may not reweigh the evidence and substitute its judgment for that of the trier of fact. The Third District opinion in no way contravenes Cripe or Delgado. What the Third District opinion has done is properly focus on the undisputed evidence concerning the immunity provided to Sgt. Sedano pursuant to (9), Fla. Stat., and the unrebutted evidence of a lack of malice in ruling that a summary judgment and a directed verdict should have been entered on the malicious prosecution claim. There is thus no showing whatsoever that the Third District in any way conflicted with a decision of this Honorable Court or that of another district court of appeal. 9

14 decisions. CONCLUSION Jurisdiction does not exist to review this case based on a conflict of Respectfully submitted, R. A. CUEVAS, JR. Miami-Dade County Attorney Stephen P. Clark Center 111 N.W. 1 st Street, Suite 2810 Miami, Florida By: Eric K. Gressman Assistant County Attorney Florida Bar No Phone: (305) Fax: (305) EKG@miamidade.gov CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via US Mail on this 11 th day of May, 2012 to: Teri Valdes, Esquire, 1501 Venera Avenue, Suite 300, Coral Gables, FL 33136; Leonard P. Fenn, Esquire, 2100 Ponce de Leon Boulevard, Suite 1180, Coral Gables, FL 33134; and Arthur Joel Berger, Esquire, 1231 Mariposa Avenue, Suite 3, Coral Gables, FL Assistant County Attorney 10

15 CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this brief has been generated in Times New Roman 14-point font and complies with the font requirements of Rule 9.210(a) of the Florida Rules of Appellate Procedure. Assistant County Attorney 11