# Third District Court of Appeal

State of Florida

Opinion filed May 10, 2017.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1579

Lower Tribunal No. 09-42627

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### Jose A. Rivero

, Appellant,

vs.



### David A. Howard, Esq., etc.

, et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Robert J. Luck

, Judge.

Jose A. Rivero, in proper person

.

David S. Molansky

, for appellees.

Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

EMAS, J.Appellant Jose A. Rivero appeals from a final summary judgment in favor of

appellees David A. Howard, Esq. and David A. Howard P.A. For the reasons that

follow, we affirm in part and reverse in part.

Rivero filed a complaint against appellees for legal malpractice. In his legal

malpractice complaint, Rivero alleged that he retained appellees for the purpose of

filing a false arrest claim against Rivero’s former girlfriend, Mayile Salgado, and

against Miami-Dade Detective Jesus Fuentes (individually), as well as a malicious

prosecution claim against the Miami-Dade State Attorney’s Office and the MiamiDade Police Department. Rivero alleged that appellees negligently failed to file

suit and instead permitted the statute of limitations to expire, barring Rivero’s false

arrest claims against Salgado and Fuentes and his malicious prosecution claims

against the Miami-Dade State Attorney’s Office and the Miami-Dade Police

Department.

Appellees answered the complaint and alleged several affirmative defenses,

including, inter alia, that there was probable cause to arrest Rivero, and thus that

Rivero could not have prevailed on a claim for false arrest against Salgado and

Fuentes.

Thereafter, appellees filed a motion for summary judgment, contending that

there were no disputed issues of material fact and that, because Rivero could not

have prevailed in the underlying false arrest or malicious prosecution claims,

2Rivero as a matter of law cannot establish a cause of action for legal malpractice

against appellees. Specifically, appellees contended that, as to the false arrest

claim, there was probable cause to arrest Rivero, thus barring any viable claim for

false arrest; absent a viable underlying claim, Rivero cannot establish a cause of

action for legal malpractice premised on appellees’ failure to timely file a false

arrest claim. 1 The trial court agreed, and entered final summary judgment in favor

of appellees. 2

This appeal followed, and we review de novo the trial court’s entry of

summary judgment. Collections, USA, Inc. v. City of Homestead

, 816 So. 2d

1 Legal malpractice actions of this nature are sometimes referred to as “a case

within a case” because, in order to establish causation for purposes of the

malpractice action, the plaintiff must prove that, but for the attorney’s negligence,

the plaintiff would have prevailed on the underlying claim (here, false arrest or

malicious prosecution). See, e.g.

, Gunn v. Minton

, 133 S. Ct. 1059, 1065 (2013);

Silvestrone v. Edell

, 701 So. 2d 90, 92 (Fla. 5th DCA 1997), rev’d on other

grounds

, 721 So. 2d 1173 (Fla. 1998).

2 In addition to finding that Rivero could not establish a viable claim of false arrest

against Salgado and Fuentes, the trial court also found that Rivero could not

establish a viable claim for malicious prosecution against the Miami-Dade State

Attorney’s Office or the Miami-Dade Police Department. Appellant does not

challenge (and has therefore abandoned) that portion of the final summary

judgment regarding his claim that appellees failed to timely file an action for

malicious prosecution against the Miami-Dade State Attorney’s Office and the

Miami-Dade Police Department. We therefore affirm the final summary judgment

insofar as it determined that Rivero’s legal malpractice claim could not be

premised upon appellees’ alleged failure to file a malicious prosecution claim

against the Miami-Dade State Attorney’s Office or against the Miami-Dade Police

Department. Our decision reversing the final summary judgment is limited to

Rivero’s legal malpractice action premised upon appellees’ alleged failure to

timely file a claim for false arrest against Salgado and Fuentes.

31225, 1227 (Fla. 3d DCA 2002). Summary judgment is proper only if there is no

genuine issue of material fact and if the moving party is entitled to judgment as a

matter of law. Id.

False arrest is “the unlawful restraint of a person against that person’s will.”

Willingham v. City of Orlando

, 929 So. 2d 43, 48 (Fla. 5th DCA 2006). The

existence of probable cause to arrest is an affirmative defense to a false arrest

claim. Miami-Dade Cty. v. Asad

, 78 So. 3d 660, 669 (Fla. 3d DCA 2012); Mailly

v. Jenne

, 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004). An arresting officer,

however, is required to conduct a reasonable investigation in order to determine

whether probable cause exists to arrest a person. Harder v. Edwards

, 174 So. 3d

524, 534 (Fla. 4th DCA 2015); City of Clearwater v. Williamson

, 938 So. 2d 985,

990 (Fla. 2d DCA 2006). Moreover, “[w]here it would appear to a ‘cautious man’

that further investigation is justified before instituting a proceeding, liability may

attach for failure to do so, especially where the information is readily obtainable,

or where the accused points out the sources of the information.” Harris v. Lewis

State Bank

, 482 So. 2d 1378, 1382 (Fla. 1st DCA 1986). See also City of St.

Petersburg v. Austrino

, 898 So. 2d 955 (Fla. 2d DCA 2005).

Our review of the record, taken in a light most favorable to Rivero as the

non-moving party, demonstrates that there remain disputed issues of material fact

regarding whether, prior to arresting Rivero, Detective Fuentes conducted a

4reasonable investigation (and whether a reasonable investigation would have

established probable cause to arrest Rivero). Because these issues of material fact

remained in dispute, the trial court erred in its determination that Rivero could not

have prevailed on a claim of false arrest against Salgado or against Fuentes. We

therefore reverse that portion of the summary judgment. We affirm the trial

court’s summary judgment insofar as it determined that Rivero could not have

prevailed on a claim of malicious prosecution against the Miami-Dade State

Attorney’s Office or against the Miami-Dade Police Department.

Affirmed in part, reversed in part and remanded for proceedings consistent

with this opinion.

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