Verdon v. Song
251 So. 3d 256
Fla. Dist. Ct. App.2018Background
- Husband (Verdon) sued wife (Song) for abuse of process and malicious prosecution after she allegedly fabricated domestic-violence accusations leading to his arrest and prosecution.
- After formal charges were filed, Wife attempted to use Husband’s credit card; the charge was declined.
- Wife left a voicemail implying she would press charges and saying Husband should call her before she did something he “could not fix,” which Husband characterized as an extortionate threat tied to the criminal proceeding.
- Wife then filed a sworn affidavit and a request to prosecute containing, according to Husband, false statements.
- The State later nolle prossed the criminal charges after a merits review, noting the likelihood of conviction was “slight”; the complaint alleged this was a bona fide termination on the merits, not for technical reasons.
- The trial court dismissed the second amended complaint with prejudice for failure to state claims for both abuse of process and malicious prosecution; the appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint sufficiently pleads abuse of process based on alleged extortion tied to pending prosecution | Verdon: voicemail and subsequent false affidavit show improper use of process for collateral purpose (extortion) | Song: complaint fails because it does not allege an express conditioning of prosecution on credit-card access | Reversed: allegations that Wife implicitly threatened prosecution to obtain card use sufficiently plead abuse of process |
| Whether complaint sufficiently pleads malicious prosecution by alleging bona fide termination in plaintiff's favor | Verdon: nolle prosequi after merits review and because conviction unlikely constitutes bona fide termination on the merits | Song: dismissal proper because complaint did not allege no chance of conviction or that the State declared innocence | Reversed: alleged nolle pros after merits review and not for technical reasons satisfies bona fide termination element |
Key Cases Cited
- Hardick v. Homol, 795 So. 2d 1107 (Fla. 5th DCA 2001) (elements of abuse of process)
- Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977) (distinguishing malicious prosecution and abuse of process and explaining overlap)
- Doss v. Bank of Am., N.A., 857 So. 2d 991 (Fla. 5th DCA 2003) (bona fide termination requirement for malicious prosecution)
- Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994) (elements required to prevail in malicious prosecution)
- Minor v. Brunetti, 43 So. 3d 178 (Fla. 3d DCA 2010) (motion to dismiss tests legal sufficiency; accepts well-pled allegations)