                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                APRIL 4, 2006
                                No.  05-14585
                                                              THOMAS K. KAHN
                            Non-Argument Calendar
                                                                  CLERK
                          ________________________

                    D. C. Docket No.  03-00180-CV-J-25TEM

JEROLD EVANS,
                                                   Plaintiff-Appellant,

                                      versus

GEORGIA PACIFIC, INC., 
                                              Defendant-Appellee. 
                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (April 4.  2006)

Before CARNES, PRYOR and RONEY, Circuit Judges. 

PER CURIAM:

      Plaintiff Jerold Evans appeals the district court’s grant of summary

judgment to defendant Georgia Pacific, Inc. on his claim for malicious prosecution

under Florida law.  Georgia Pacific moves for appellate attorneys’ fees and

expenses, to which Evans has not responded.  We: (1) affirm the grant of summary
judgment to Georgia Pacific; (2) grant in part Georgia Pacific’s “Motion for Just

Damages and Costs,” requesting appellate attorneys’ fees and expenses; and (3)

remand to the district court for a determination of an appropriate amount. 

      This case stems from a June 2, 2000 police report filed by a trucking

company, stating that one of its trailers loaded with logs had been stolen from its

Hawthorne, Florida plant earlier that day.  A few days later, Putnam County

Sheriff’s Office Detective Michael Soles went to Georgia Pacific’s plant to

investigate the crime, where he spoke with John Anderson, a Georgia Pacific

employee.  During that conversation, as well as in a written statement, Anderson

identified plaintiff Jerold Evans, a truck driver, as the person who had delivered

the stolen logs on June 2.  After an investigation by Detective Soles, Evans was

arrested for grand theft.  During interrogation, Evans denied being present at the

plant on June 2, which contradicted other witnesses who had stated that Evans

delivered a load of lumber to the plant that day.  As a result, Georgia Pacific

posted a picture of Evans at its plant, resulting in Evans not receiving any truck

delivery assignments from that location. 

      Evans was formally charged by information with grand theft by the State

Attorney’s Office on August 28, 2000.  On March 21, 2001, however, the State

Attorney’s office dropped the charges after determining that Evans did not commit

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the charged grand theft, although Detective Soles says that he still believes that

Evans was the individual who committed the grand theft. 

      Evans filed a defamation law suit in Florida state court against Georgia

Pacific on December 31, 2002, which was removed to federal court on diversity

grounds.  The district court dismissed the defamation lawsuit as time-barred on

January 16, 2004, but granted leave for Evans to amend the complaint to include a

malicious prosecution claim. 

      On June 16, 2004, Evans filed a second amended complaint alleging that

Georgia Pacific was vicariously liable for the acts of its employee, John Anderson,

who had identified Evans as the driver of the truck that had delivered stolen logs

to its plant.  Specifically, the complaint asserted that the “prosecution [] resulting

from Defendant’s false allegation against [him] was commenced and continued by

said Defendant from malice towards Plaintiff and to wrong and injure him and that

Defendant well knew, or should have known, that the prosecution of Plaintiff was

false and groundless, and without probable cause.” 

                               Malicious Prosecution

      On January 26, 2005, the district court granted summary judgment to

Georgia Pacific on the ground that Evans had failed to set forth a prima facie case

for malicious prosecution under Florida law.  After reviewing the convoluted

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procedural history in this Court, we hold that we have jurisdiction to review

Evans’ August 16, 2005 notice of appeal requesting review of the district court’s

grant of summary judgment, as well its denial of the motion for reconsideration. 

See Williams v. Bolger, 633 F.2d 410, 413 (5th Cir.  1980); see also Fed.  R. App. 

P. 4(a). 

       In order to set forth a prima facie claim for malicious prosecution in Florida,

the plaintiff must prove: (1) the commencement or continuance of an original

criminal or civil judicial proceeding; (2) its legal causation by the present

defendant who was the defendant in the original proceeding; (3) its bona fide

termination in favor of the present plaintiff; (4) the absence of probable cause for

such proceeding; (5) the presence of malice therein; and (6) damages conforming

to legal standards resulting to plaintiff.  See Jones v. State Farm Mut.  Auto.  Ins. 

Co., 578 So.  2d 783, 785 (Fla. 1st DCA 1991). 

       Evans has failed to show both the absence of probable cause, as well as the

presence of malice on the part of Anderson or Georgia Pacific.  In fact, Evans

testified that he was unaware of any reason why Anderson would falsely identify

him to Detective Soles and gave no reason for lying to Detective Soles about being

present on June 2, 2000 at the Georgia Pacific plant, despite other witnesses

corroborating that he indeed had been there to drop off a shipment of logs. 

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      Instead, Anderson responded to an inquiry made by Detective Soles about a

stolen truck containing logs.  Anderson stated that he had believed Evans was the

individual who had delivered logs to the plant on June 2.  Detective Soles

subsequently investigated the claim, identifying other witnesses to corroborate that

Evans had indeed been at the plant on June 2.  This supported the detective’s

belief that Evans had been untruthful about his whereabouts that day.  Although

the State Attorney’s Office ultimately dropped the charges approximately six

months later, Evans has presented no evidence to raise a genuine issue of material

fact that there was a lack of probable cause to initially move forward with this case

or that Anderson maliciously set forth to falsely accuse him of the charged

offense.  See Burger v. Time Ins.  Co., Inc., 162 F.3d 1111, 1112-13 (11th Cir. 

1998) (affirming granting of summary judgment on Florida malicious prosecution

claim for failure to set forth a prima facie case, noting a malicious prosecution

claim does not lie “if the defendant merely gives a statement to the proper

authorities, leaving the decision to prosecute entirely to the uncontrolled discretion

of the officer”). 

                    Attorneys’ Fees and Costs in the District Court

      On February 10, Georgia Pacific filed a Bill of Costs for $2,517.05 and a

Motion for Attorney’s Fees and Related Non-Taxable Expenses, pursuant to

                                          5
Florida Statute § 768.79, in the amount of $65,426.98.  On July 26, the district

court granted in part Georgia Pacific’s motion for attorneys’ fees and expenses,

awarding Georgia Pacific $23,324.94.  The district court held that “this case did

not involve either a close call regarding an interpretation of the law or facts” but

“that the number of hours expended by the legal professionals in this case . . .  was

excessive.” 

      Although Evans fails to raise any argument in his initial brief as to the

correctness of the district court’s award of attorneys’ fees and costs, which would

waive the issue in this Court, see Access Now, Inc. v. Southwest Airlines Co., 385

F.3d 1324, 1330 (11th Cir.  2004), we note that even if the issue was properly

raised to this Court it would nonetheless be due to be affirmed.  Evans did not

object to Georgia Pacific’s motion for attorneys’ fees and expenses in the district

court, and there is no record evidence the district court abused its discretion in

making that award. 

           Appellee’s Pending “Motion for Just Damages and Costs”

      As to Georgia Pacific’s pending “Motion for Just Damages and Costs” – to

which Evans has offered no response – we first note that the district court

succinctly characterized this case as not a “close call regarding an interpretation of

the law or facts” in its order granting attorneys’ fees and expenses to Georgia

                                          6
Pacific.  It likewise is not a close call here on appeal and is frivolous.  See Allstate

Ins.  Co. v. Int’l Shipping Corp., 703 F.2d 497, 499 (11th Cir.  1983) (citing Fed.  R.

App.  P. 38). 

      We therefore grant in part Georgia Pacific’s motion for appellate attorneys’

fees and expenses.  We express no opinion as to the reasonableness of the $20,561

in appellate attorneys’ fees and $384.93 expenses requested by Georgia Pacific but

instead leave it for the district court’s determination on remand. 

      We AFFIRM the district court’s grant of summary judgment to Georgia

Pacific and the award of attorneys’ fees and costs in the district court.  We

GRANT IN PART Appellee’s November 3, 2005 “Motion for Just Cause and

Damages” and REMAND with instructions to determine an appropriate award of

appellate attorneys’ fees and expenses.  REMANDED to the district court for

proceedings consistent with this opinion. 




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