Opinion
No. 87-0245.
February 10, 1988. Rehearing Denied March 28, 1988.
Appeal from the Circuit Court, Broward County, Frank Orlando, J.
Donald A. Wich, Jr., of Sullivan, Bailey, Wich Stockman, P.A., Pompano Beach, for appellant.
Philip M. Berman, Pompano Beach, for appellee.
Michael O. McLain appeals an adverse summary judgment entered in his malicious prosecution suit against Robert L. Hall. We reverse.
Previously, Hall had brought an action for malicious prosecution against McLain (and others). The termination of that suit in McLain's favor is the predicate upon which McLain brought this suit. Although the final judgment in that case had been affirmed on the merits, the award of attorney's fees under section 57.105, Florida Statutes had been reversed. Hall v. City of Pompano Beach, 487 So.2d 318 (Fla. 4th DCA 1986). The trial court viewed the reversal of the attorney's fee award to McLain as a determination by this court that Hall had acted with probable cause in bringing his suit initially. That construction of this court's opinion in Hall v. City of Pompano Beach, supra, is broader than is justified. We made no determination as to either the presence or absence of probable cause for Hall to have brought his action initially, holding only that the circumstances did not justify a finding that Hall's action was totally frivolous. On the pleadings and affidavits before the trial court there is a factual issue as to whether Hall had probable cause to file his initial action.
We reverse the summary judgment in this case with reluctance, since it appears to us that both parties would be benefited by having this unfortunate and lengthy litigation brought to an end.
The other point raised is without merit.
REVERSED AND REMANDED.
LETTS and ANSTEAD, JJ., concur.