Summary
holding that, because the issue of whether a judicial finding of probable cause after the appellee's arrest foreclosed an action for malicious prosecution was not raised on the motion for directed verdict, the issue was not preserved for appeal
Summary of this case from MIAMI-DADE COUNTY v. ASADOpinion
No. 84-1673.
July 3, 1985.
Appeal from the Circuit Court, Pinellas County, James B. Sanderlin, J.
Philip W. Dann of Philip W. Dann, P.A., St. Petersburg, for appellants.
Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller Lamb, P.A., St. Petersburg, for appellee.
Appellants raise two issues in this appeal from a judgment for compensatory and punitive damages in an action for malicious prosecution and defamation.
The first issue raised was whether a judicial finding of probable cause after appellee's arrest foreclosed an action for malicious prosecution. This issue was not before the trial court on the motion for directed verdict and, therefore, has not been preserved for appeal. Without commentary on its effect, we note that the issue, as stated, misstates the fact. The judicial probable cause determination relied on by appellants was made prior to appellee's arrest and not in an adversarial hearing after her arrest.
The second issue raised by appellants concerns the burden of proof to establish defamation. We do not reach that issue as the verdict for compensatory and punitive damages was not divided between the malicious prosecution count and the defamation count. We, therefore, cannot determine upon which count the damages were assessed. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla. 1978).
Affirmed.
RYDER, C.J., and CAMPBELL and FRANK, JJ., concur.