Summary
In Arison Shipping Co. v. Hatfield, 352 So.2d 539 (Fla. 3d DCA 1977), this court squarely held that it may not because a dismissal for lack of jurisdiction is not "on the merits" and therefore does not constitute the "bona fide termination" of the earlier litigation which is an indispensable element of the tort of malicious prosecution.
Summary of this case from Schoenbrod v. O'NeillOpinion
No. 76-1632.
November 22, 1977. Rehearing Denied December 21, 1977.
Appeal from the Circuit Court for Dade County, Arden M. Siegendorf, J.
Law Offices of Howard W. Mazloff, Coral Gables, for appellants.
Paul Thomson and Sanford L. Bohrer, Miami, for appellees.
Before HENDRY, C.J., and PEARSON and HUBBART, JJ.
Appellants/plaintiffs appeal from an order dismissing their amended complaint for malicious prosecution.
The sole issue presented by this appeal is whether a dismissal "for lack of jurisdiction over the subject matter" in a prior civil lawsuit filed against the present plaintiffs is a bona fide termination of the lawsuit sufficient to state a cause of action for malicious prosecution. We hold that it is not.
There are six elements needed to be established by a plaintiff to sustain a cause of action based upon malicious prosecution: first, the commencement or continuance of an original criminal or civil judicial proceeding; second, its legal causation by the present defendant against the present plaintiff; third, its bona fide termination in favor of the present plaintiff; fourth, absence of probable cause; fifth, presence of malice; and sixth, damage conforming to the legal standards resulting to the plaintiff. Applestein v. Preston, 335 So.2d 604 (Fla.3d DCA 1976). Such a "bona fide termination" of the prior civil suit must be an adjudication on the merits in a judicial proceeding. Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.3d DCA 1977).
It is our opinion that a dismissal for lack of subject matter jurisdiction is not an adjudication on the merits and thus, not a bona fide termination of the prior civil suit. See Weber v. Johnston Fuel Liners, Inc., 540 P.2d 535 (Wyo. 1975); Heaney v. Purdy, 29 N.Y.2d 157, 324 N.Y.S.2d 47, 272 N.E.2d 550 (1971); Roy v. Landers, 467 S.W.2d 924 (Mo. 1971); Siegel v. City of Chicago, 127 Ill. App.2d 84, 261 N.E.2d 802 (1970).
Accordingly, the judgment of dismissal is hereby affirmed.
Affirmed.