Maybin v. Thompson

560 So. 2d 295 | Fla. Dist. Ct. App. | 1990

CAMPBELL, Chief Judge.

In one of these consolidated appeals, appellant, plaintiff below, Dale Aubrey May-bin, appeals a final judgment entered in favor of appellee, defendant below, city of Fort Myers (case number 88-02906), wherein appellee was absolved of liability in regard to a cause of action alleging battery, false arrest and false imprisonment. ' We find no reversible error in the proceedings leading to that final judgment and, therefore, affirm the final judgment for the city of Fort Myers.

In the other consolidated appeal (case number 88-02459), the trial court entered an order which granted in part and denied in part Maybin’s motion for new trial in an action for malicious prosecution. Maybin first sought to appeal from that part of the order which denied, in part, his motion for new trial. Malcolm Thompson, codefend-ant below with the city of Fort Myers, filed a cross-appeal from that part of the order which granted a new trial as to damages only. The city of Fort Myers was not named as a party in that alleged cause of action.

Procedurally, Maybin’s attempted appeal from that part of the order which denied, in part, a motion for new trial is an attempt to appeal a nonappealable order. We have treated Thompson’s cross-appeal as the main appeal since it was timely filed in regard to an appealable order. Maybin’s attempted appeal has been treated as a cross-appeal.

Maybin’s motion for new trial sought a new trial on the issues of damages alone, a verdict having been rendered for Maybin and against Thompson on the malicious prosecution cause of action, but zero damages having been awarded by the jury. No appeal has been taken and no motion for new trial was filed in regard to the verdict for Thompson on the other causes of action. Since the filing of the notice of appeal, Thompson has filed a confession of error regarding documents pertaining to Thompson that found their way into the jury room deliberations without being admitted into evidence.

In his confession of error, Thompson suggests that a new trial must be awarded as to all issues, damages and liability on the cause of action alleged for malicious prosecution. We agree and reverse the order granting a new trial as to damages only and remand for a new trial on all issues of damages and liability growing out of the malicious prosecution cause of action alleged against Thompson.

Affirmed in part, reversed in part and remanded.

HALL and PATTERSON, JJ., concur.