OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




                   Gabriel CAZARES, Appellant/Cross-Appellee,
                                       v.
 The CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., a California corporation;  Clyde
   H. Wilson, Jr., Wilson, Wilson & Namack Chartered, et al., Appellees/Cross-
                                   Appellants.
                                  No. 82-1386.
                      District Court of Appeal of Florida,
                                 Fifth District.
                                 Dec. 15, 1983.
                         Rehearing Denied Jan. 27, 1984.
  Actions for malicious prosecution and abuse of process were brought.  The
 Circuit Court, Volusia County, J. Robert Durden, J., dismissed both counts, and
 plaintiff appealed.  The District Court of Appeal, Cobb, J., held that:  (1)
 complaint for abuse of process was properly dismissed, where no act other than
 wrongful filing of underlying lawsuit was alleged;  (2) complaint for malicious
 prosecution, which alleged lack of probable cause, was improperly dismissed on
 grounds, determined from looking at underlying action, that defendant had
 probable cause;  and (3) though malicious prosecution action was brought
 prematurely, amending of complaint following appellate court action cured
 defect.
  Affirmed in part;  reversed in part;  and remanded.
  See also 429 So.2d 348.

 [1] PROCESS
 Abuse of process requires act constituting misuse of process after it issues,
 and maliciousness or lack of foundation of asserted cause of action itself is
 irrelevant.

 [2] PRETRIAL PROCEDURE
 Where plaintiff failed to assert act other than wrongful filing of underlying
 lawsuit, complaint alleging abuse of process was required to be dismissed.

 [3] MALICIOUS PROSECUTION
 Elements of cause of action of malicious prosecution are commencement or
 continuance of original criminal or civil judicial proceeding by present
 defendant against plaintiff who was defendant in original proceeding, bona fide
 termination in favor of present plaintiff, absence of probable cause for such
 proceeding, presence of malice, and damage conforming to legal standards
 resulting to plaintiff.

 [4] PRETRIAL PROCEDURE
 Function of motion to dismiss complaint is to raise as question of law
 sufficiency of facts alleged to state cause of action.

 [5] PRETRIAL PROCEDURE
 For purpose of passing upon motion to dismiss complaint, court must assume all
 facts alleged in complaint to be true.

 [6] PRETRIAL PROCEDURE
 Motion to dismiss must be decided on questions of law only.

 [7] PRETRIAL PROCEDURE
 Purpose of motion to dismiss is to ascertain if plaintiff has alleged good
 cause of action, and court, when faced with motion to dismiss complaint for
 failure to state cause of action, must confine itself strictly to allegations
 within four corners of complaint.

 [7] PRETRIAL PROCEDURE
 Purpose of motion to dismiss is to ascertain if plaintiff has alleged good
 cause of action, and court, when faced with motion to dismiss complaint for
 failure to state cause of action, must confine itself strictly to allegations
 within four corners of complaint.

 [8] PRETRIAL PROCEDURE
 Complaint for malicious prosecution was improperly dismissed based on review of
 underlying action to determine if probable cause existed for bringing that
 action, where malicious prosecution complaint alleged lack of probable cause.

 [9] MALICIOUS PROSECUTION
 Appeal of judgment extends time in which to bring malicious prosecution action
 until after final appellate decision, and statute of limitations does not start
 until appeal is decided or time for taking appeal expired, since cause of
 action would not accrue until last element, which is termination favorable to
 plaintiff, occurred.  West's F.S.A. s 95.031(1).

 [10] MALICIOUS PROSECUTION
 Though initial malicious prosecution complaint was prematurely filed prior to
 decision of appeal of underlying action, plaintiff's amendment of complaint
 following issuance of appellate decision cured defect, precluding need for
 dismissal and refiling of same amended complaint.
  *443 C. Allen Watts, DeLand, Wagner, Cunningham, Vaughan & McLaughlin,
 P.A., Tampa, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton,
 Meadow & Olin, P.A., Miami, Walt Logan, St. Petersburg, for appellant/cross-
 appellee.
  J. Michael Hayes of Johnson, Paniello & Hayes, Tampa, for appellees/cross-
 appellants.
  Tobias Tolzmann, appellee, pro se.

  COBB, Judge.
  This appeal concerns the trial court's dismissal of a complaint attempting to
 allege the torts of malicious prosecution in Count I and abuse of process in
 Count II.  For the reasons explicated below, we affirm the dismissal of Count
 II but reverse the dismissal of Count I.
  The appellant, Gabriel Cazares, originally filed the complaint on March 26,
 1980, in Pinellas County.  The cause was transferred to Volusia County, and
 Cazares filed an *444 amended complaint on September 11, 1981, wherein he
 alleged that the defendant, the Church of Scientology of California, Inc., had
 maliciously sued him in federal court in 1976 for violation of its civil rights
 and for defamation.  That action terminated at the trial level in favor of
 Cazares and, ultimately, that result was affirmed on appeal.  See Church of
 Scientology of California v. Cazares, 638 F.2d 1272 (5th Cir.1981).
  [1][2] In November, 1981, the Church moved to dismiss both counts of Cazares'
 amended complaint.  In moving to dismiss the second count, abuse of process,
 the Church asserted that no act, other than the wrongful filing of the
 underlying lawsuit, was alleged.  Without belaboring the point, we affirm the
 trial court's dismissal with prejudice of Count II on the rationale of Blue
 v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980), and McMurray v. U-Haul Co.,
 Inc., 425 So.2d 1208 (Fla. 4th DCA 1983).  As pointed out in those cases, abuse
 of process requires an act constituting the misuse of process after it issues.
 The maliciousness or lack of foundation of the asserted cause of action itself
 is actually irrelevant to the tort of abuse of process.  See Nash v. Walker,
 78 So.2d 685 (Fla.1955).
  The Church alleged that Count I should be dismissed on the bases that (1)
 there was no bona fide termination of the original federal action at the time
 Cazares filed suit, and (2) the ultimate facts alleged did not show that the
 underlying lawsuit (the federal court action) was initiated without probable
 cause.  In dismissing the plaintiff's count for malicious prosecution, the
 trial court stated in its order:
   ... The Court has read and considered the case of The Church of
 Scientology vs. Gabriel Cazares, decided by the Fifth Circuit Court of Appeals
 in its opinion found at 638 F.2d 1272 (1981), which is specifically cited as
 part of the Plaintiffs' Amended Complaint and which sets forth in some detail
 the factual basis for the allegations filed by the Defendant, THE CHURCH OF
 SCIENTOLOGY, against GABRIEL CAZARES in a Title 42, Section 1983, Federal Civil
 Rights and Defamation Action.  The Court carefully considered this opinion, and
 it is apparent on the face thereof that there was probable cause to bring the
 stated cause of action under the facts set forth therein and the laws of the
 State of Florida as set forth in the case of Heard vs. Mathis, 344 So.2d
 641 [651], a decision of the First District Court of Appeals decided in 1977,
 and other Florida precedents.
   In ruling that there was probable cause to bring the stated action, the Court
 notes that it is the Court's responsibility to determine whether or not there
 was probable cause, and it is only other factual matters which are necessary to
 be considered by the jury.  See the case of Fee, Parker, and Lloyd, P.A. vs.
 Sullivan, 379 So.2d 412, a decision of the Fourth District Court of Appeals of
 Florida decided in 1980.
   It is upon consideration thereof, ORDERED AND ADJUDGED by this Court that
 Count I, as to the Defendant, CHURCH OF SCIENTOLOGY, and as to the Defendants,
 CLYDE H. WILSON, JR., and WILSON, WILSON and NAMACK CHARTERED, be and the same
 is hereby dismissed with prejudice.  In so doing, this Court would further note
 that there have been other persuasive arguments made by both Defendants for the
 dismissal of Count I on two grounds:  (1) That the Complaint in the present
 suit was prematurely filed;  and (2) That the federal suit was a privileged
 petition for a redress of grievances under the First Amendment to the
 Constitution of the United States of America.  However, this Court feels that
 there is no necessity at this time to reach these issues by reason of the
 dismissal with prejudice of Count I as herein entered.
  [3] The elements of the cause of action of malicious prosecution are as
 follows:
   (1) The commencement or continuance of an original criminal or civil judicial
 proceeding;
   *445 (2) Its legal causation by the present defendant against plaintiff
 who was 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;
   (6) Damage conforming to legal standards resulting to plaintiff.
  Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So.
 623 (1926);  Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980).
  In the instant case, the point on appeal concerns element number 4, that of
 the absence of probable cause.  Here, the judge, on a motion to dismiss,
 determined that probable cause did exist to bring the underlying suit, thus
 requiring that the complaint be dismissed, since an element of the cause of
 action was missing.  The Church contends correctly that the question of
 probable cause may be one of law for the court.  See City of Pensacola v.
 Owens, 369 So.2d 328 (Fla.1979) (where facts are undisputed, courts should
 determine probable cause);  Fee, Parker & Lloyd v. Sullivan, 379 So.2d 412
 (Fla. 4th DCA), cert. denied, 388 So.2d 1119 (Fla.1980) (existence or lack
 of probable cause is a pure question of law for the court to determine, with
 the resolution of disputed issues of fact a question to be submitted to the
 jury).  In the instant case, however, the court determined the question too
 soon.  The cases relied on by the appellee [FN1] deal with situations where the
 trial court ruled on the issue of probable cause when presented with either
 motions for summary judgment or directed verdict, not on a motion to dismiss as
 in the instant case.

      FN1. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (directed
     verdict);  Gallucci v. Milavic, 100 So.2d 375 (Fla.1958) (directed
     verdict);  Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th
     DCA 1981) (summary judgment);  Fee, Parker & Lloyd v. Sullivan, 379
     So.2d 412 (Fla. 4th DCA 1980) (appeal after final judgment and jury
     verdict);  Priest v. Groover, 289 So.2d 767 (Fla. 2d DCA 1974) (directed
     verdict);  Liabos v. Harman, 215 So.2d 487 (Fla. 2d DCA 1968) (summary
     judgment).

  [4][5][6][7][8] The function of a motion to dismiss a complaint is to raise as
 a question of law the sufficiency of the facts alleged to state a cause of
 action.  For the purpose of passing upon a motion to dismiss, the court must
 assume all the facts alleged in the complaint to be true.  A motion to dismiss
 must be decided on questions of law only.  The purpose of a motion to dismiss
 is to ascertain if the plaintiff has alleged a good cause of action, and the
 court, when faced with a motion to dismiss a complaint for failure to state a
 cause of action, must confine itself strictly to the allegations within the
 four corners of the complaint.  Kest v. Nathanson, 216 So.2d 233 (Fla. 4th
 DCA 1968).  See also Pizzi v. Central Bank & Trust Co., 250 So.2d 895
 (Fla.1971);  City of St. Augustine v. Authentic Old Jail, Inc., 388 So.2d
 1044 (Fla. 5th DCA 1980).  In the instant case, the complaint contained
 allegations relating to the lack of probable cause (paragraphs 13, 15), but the
 trial court determined from looking at the underlying action that indeed
 probable cause did exist and dismissed the count.
  Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968), is almost identical
 to the instant case.  In Kest, the plaintiff appealed from a final order
 dismissing with prejudice his complaint in a malicious prosecution action.  The
 trial court's order dismissing the complaint stated that the court had taken
 judicial notice of the underlying suit, and that an examination of this suit
 showed that a motion for summary judgment was denied, which to the trial judge
 indicated that probable cause for the suit was present, leading to a dismissal
 of the malicious prosecution claim. [FN2]

      FN2. Although the summary judgment was denied in the underlying action,
     the plaintiff in the malicious prosecution suit was eventually victorious
     in the underlying suit.

  The Fourth District reversed, and after setting out the basic test on a motion
 to dismiss and the elements required for malicious prosecution, stated:
   *446 While it may be possible to show in later stages of this case that
 the element of probable cause did exist for instituting the first action, the
 posture of this action before the trial judge was on motion to dismiss the
 complaint.  It was improper for the trial court to go beyond the four corners
 of the complaint when considering a motion to dismiss it and invoke
 presumptions of fact based upon denial of motions that were filed in a prior
 case.  Such is not the province of the trial court in the process of
 determining if a complaint can withstand a motion to dismiss and would afford
 no procedural safeguard to the litigants involved.
   Under these circumstances, we think that it cannot be said as a matter of law
 that the allegations of the complaint failed to state a cause of action, or
 that the complaint on its face shows that probable cause existed for
 instituting the first action.  We conclude, therefore, that the trial court was
 in error in dismissing the complaint.
  216 So.2d at 236.  The actions of the trial court in Kest were the same
 as those in the instant case, and a similar result is warranted.
  We should also address the other major argument presented before the trial
 court on the motion to dismiss, that of the complaint being prematurely filed.
 At argument below, the Church contended that the cause of action for malicious
 prosecution did not exist at the time that the suit was filed, since the
 element of a termination in favor of the present plaintiff was missing, because
 the appeal before the Fifth Circuit was still pending.  Cazares responded that
 the termination occurred at the time the district court acted and, therefore,
 the complaint was proper.
  The courts are divided on the effect of an appeal from a judgment in the
 original action on the right to maintain an action for malicious prosecution.
 Daniel v. Pappas, 16 F.2d 880 (8th Cir.1926).  One line of authority is of
 the view that the right to commence the action for malicious prosecution
 accrues on the rendition of the judgment in the original proceeding, and that
 the right to maintain the proceeding is not affected by an appeal.  These
 authorities hold, however, that the pendency of an appeal may be grounds for
 staying the malicious prosecution action until the appeal has been
 determined.  See Levering v. National Bank of Morrow County, 87 Ohio St.
 117, 100 N.E. 322 (1912).  The greater weight of authority holds that the
 pendency of an appeal from the judgment rendered in the proceeding complained
 of precludes maintenance of a suit for malicious prosecution.  See Breen v.
 Shatz, 267 S.W.2d 942 (Ky.Ct.App.1954);  Restatement (Second) of Torts s 674,
 Comment j (1977);  Annot. 41 A.L.R.2d 863;  54 C.J.S. Malicious
 Prosecution s 56 (1955).
  While no Florida state court cases could be found dealing with the effect of
 an appeal on a malicious prosecution action, the United States District Court
 for the Middle District of Florida addressed the issue in Roess v. St. Paul
 Fire & Marine Ins. Co., 383 F.Supp. 1231 (M.D.Fla.1974).
  In Roess, a dispute arose between an insurance company and an insured over
 coverage on a malicious prosecution claim.  The question before the court was
 whether the underlying suit brought by a man named Koubek against Roess accrued
 before or after the policy's effective date.  The suit was determined by the
 trial court prior to the issuance of the policy, but a final appellate
 decision (by the Florida Supreme Court) was not issued until after the policy's
 effective date.  The court concluded that the date of favorable termination of
 the underlying action was the operative date for the policy's effectiveness,
 since favorable termination was seen as an indispensable ingredient in the
 claim for malicious prosecution.  The court still had to decide whether the
 favorable termination was when the trial court decided the case, or when the
 Supreme Court did, to determine whether coverage was present, and the court
 opted for the date of the Supreme Court decision, stating:
   Authority is cited for the proposition that the right to maintain an action
 for malicious *447 prosecution accrues upon the rendition of judgment in the
 trial court whether an appeal is taken or not.  It appears, however, that the
 weight of authority is to the contrary (Annot. 41 A.L.R.2d 863 (1953));  and
 there is no reason to believe that the Florida courts would adopt a minority
 view.  In summary, then, the court is compelled to the result as a matter of
 law that the Koubek claim against Roess for malicious prosecution did not
 mature until the taxpayer's action was finally terminated in the Supreme Court
 of Florida....
  383 F.Supp. at 1235.
  [9] Florida courts clearly hold that an action for malicious prosecution
 cannot be filed until the original action is concluded, thus precluding any
 counterclaims from being filed in the underlying action itself.  See Waite
 v. Ward, 413 So.2d 830 (Fla. 1st DCA 1982);  American Salvage & Jobbing Co.
 v. Salomon, 295 So.2d 710 (Fla. 3d DCA 1974).  It seems that the weight of
 authority is that the appeal of a judgment will extend the time for a malicious
 prosecution action until after final appellate decision.  This is the better
 rule, since to allow otherwise would lead to possible useless malicious
 prosecution actions when the plaintiff in the malicious prosecution action
 fails to win the underlying case on appeal.  Cazares' argument that this
 results in a stopping and starting of the statute of limitations is without
 merit.  The statute of limitations for a malicious prosecution action would not
 start until the appeal was decided, or the time for taking such an appeal had
 expired, because the cause of action would not accrue until the last element
 (termination favorable to the plaintiff) occurred.  See s 95.031(1), Fla.Stat.
 (1981).
  Therefore, even though the trial court cited the wrong reasons for the
 dismissal, it can be persuasively contended that the result was correct, since
 the initial complaint here was filed on March 26, 1980, and the appeal of the
 underlying action was not decided until March 9, 1981.  Cazares claims,
 however, that even if the complaint is deemed premature by this court, his
 amending of the complaint on September 11, 1981, cured the defect, since it was
 done after the Fifth Circuit opinion was issued.  Cazares relies on Florida
 Rule of Civil Procedure 1.190(d) and (e) [FN3] in support of his contention, as
 well as Federal Rule of Civil Procedure 15(d).

      FN3. Florida Rule of Civil Procedure 1.190(d) states:
     Upon motion of a party the court may permit him, upon reasonable notice and
     upon such terms as are just, to serve a supplemental pleading setting forth
     transactions or occurrences or events which have happened since the date of
     the pleading sought to be supplemented.  If the court deems it advisable
     that the adverse party plead thereto, it shall so order, specifying the
     time therefor.
     Florida Rule of Civil Procedure 1.190(e) states:
     At any time in furtherance of justice, upon such terms as may be just, the
     court may permit any process, proceeding, pleading or record to be amended
     or material supplemental matter to be set forth in an amended or
     supplemental pleading.  At every stage of the action the court must
     disregard any error or defect in the proceedings which does not affect the
     substantial rights of the parties.

  Initially, it should be pointed out that Florida Rule of Civil Procedure
 1.190(d), while modeled after the federal rule, is different, in that a key
 sentence found in Federal Rule of Civil Procedure 15(d) does not appear in the
 Florida provision.  The federal rule provides as follows:
   Upon motion of a party the court may, upon reasonable notice and upon such
 terms as are just, permit him to serve a supplemental pleading setting forth
 transactions or occurrences or events which have happened since the date of the
 pleadings sought to be supplemented.  Permission may be granted even though the
 original pleading is defective in its statement of claim for relief or
 defense.  If the court deems it advisable that the adverse party plead to the
 supplemental pleading, it shall so order, specifying the time therefor.
 (Emphasis added.)
  The language underlined was added to the federal rule in 1963.  Prior to 1963,
 *448 some cases held that where the original complaint fails to state a
 claim upon which relief could be granted, leave to serve a supplemental
 complaint must be denied because there is no proper claim before the court to
 supplement.  See 3 Moore's Federal Practice s 15.16[2].  The Florida rules were
 adopted in 1966, after the new language was placed in the federal rule, but
 without the federal language underlined above.
  In Hasam Realty Corp. v. Dade County, 178 So.2d 747 (Fla. 3d DCA 1965),
 cert. dismissed, 192 So.2d 499 (Fla.1966), the plaintiff appealed an order
 dismissing his complaint against the county for denying his zoning variance as
 premature.  The Third District affirmed, noting that when the suit was filed,
 the underlying claim was not final, since appeal to the Board of County
 Commissioners had not yet been decided.  The court stated:
   If a plaintiff has no valid cause of action on the facts existing at the time
 of filing suit, the defect cannot ordinarily be remedied by the accrual of one
 while the suit is pending.
  178 So.2d at 748.
  Similarly, in Orlando Sports Stadium v. Sentinel Star Co., 316 So.2d 607
 (Fla. 4th DCA 1975), dismissal of a complaint for libel was affirmed, since it
 was deemed premature.  In Orlando, the plaintiffs, after filing their
 initial complaint against the Sentinel, sent a letter to the paper in an
 attempt to comply with the notice and demand for retraction requirement for
 defamation actions.  After the letter was sent, the plaintiffs filed an amended
 complaint, alleging for the first time their compliance with the statute.  The
 Fourth District affirmed the dismissal, noting:
   A cause of action must exist and be complete before an action can be
 commenced or, as sometimes stated, the existence or non-existence of a cause of
 action is commonly dependent upon the state of facts existing when the action
 was begun.  As a general rule the plaintiff may not be permitted to cure the
 defect of non-existence of a cause of action when suit was begun, by amendment
 of his pleadings to cover subsequently accruing rights.
  316 So.2d at 610.  The court cited Hasam, and added that the same result is
 compelled under Rule 1.190 as was under the prior rules.
  Cazares cites two cases as contrary authority to Orlando and Hasam:
 American National Growers Corp. v. Harris, 120 So.2d 212 (Fla. 2d DCA 1960),
 and Scherer v. Scherer, 150 So.2d 496 (Fla. 3d DCA 1963).  In American
 National, a foreclosure action, the plaintiff was denied leave to file a
 supplemental complaint to cure the defect of non-payment of intangible tax on
 the mortgage notes.  The plaintiff filed leave to amend, since it had claimed
 it had not paid intangible tax due on the notes before the suit was filed and
 that it had now done so and wished to allege it.  The Florida statutes
 prohibited enforcement of a mortgage by a court action unless the tax had been
 paid.  The appellate court noted that to file a supplemental complaint cannot
 prejudice the defendant since payment of tax is a mere condition to enforcement
 of the obligation on which the tax is owed, and delinquency does not work a
 forfeiture.  The court ruled that the plaintiff be given the opportunity to
 amend and reversed.
  In Scherer, the plaintiff's wife appealed an order granting appellee
 husband's motion to amend his counterclaim to allege an act of adultery
 committed after the original suit and counterclaim were filed.  The plaintiff
 contended that it was error to allow the amendment of the counterclaim by an
 act committed some four months after the filing of the original counterclaim,
 but the Third District affirmed.  The court, in looking at the rules for
 pleadings and the liberal view of amendment, saw the amended counterclaim as a
 supplemental pleading since it concerned subject matter occurring after the
 filing of the original counterclaim.  The court saw the amended pleading as
 seeking the same relief, but on a different ground, not as a new and materially
 different suit.  The court noted that the trial court could have dismissed the
 suit *449 and required the parties to replead, but that it would have been
 time consuming and wasteful.
  A similar result was reached in O'Connell v. Citizens National Bank of
 Hollywood, 254 So.2d 236 (Fla. 4th DCA 1971), where the court denied a motion
 to dismiss a complaint based on the ground that the promissory note that was
 the subject of the suit was unenforceable, since it was incomplete on the
 original complaint.  The plaintiff filed an amended complaint, alleging its
 authority to complete the instrument and attached a completed note to the
 complaint.  The appellants contended the trial judge erred in denying the
 motion, since no valid cause of action existed at the time of the filing of the
 suit, and thus it could not be remedied, citing Hasam.  The Fourth District
 affirmed, stating:
   It seems clear to us that appellants are in no different position than they
 would have been had appellee voluntarily dismissed the original action,
 completed the instrument in accordance with its alleged authority, and
 thereafter filed a new and separate action on the completed note.  Thus,
 without deciding whether the court erred in allowing the amended complaint to
 stand, it seems clear that appellants sustained no harm or prejudice, nor has
 such action resulted in a miscarriage of justice, and hence the judgments from
 which the appeal is taken should be affirmed.
  254 So.2d at 237.
  [10] We agree with the result reached by O'Connell.  No harm results in
 allowing the amended complaint to stand, since now it does allege all the
 proper elements and it was filed after final appellate determination.  This is
 not a case where the complaint as it stands is defective, and while the
 dismissal can be technically justified, it would serve no practical purpose
 under the circumstances.
  In summary, the trial court erred by going beyond the complaint to determine
 that probable cause existed for the malicious prosecution action and in
 dismissing the complaint on that ground.  While the initial complaint was
 premature, the amending of the complaint following the appellate court action
 cured the defect, thus precluding the need for dismissal and a refiling of the
 same amended complaint.  Therefore, Count I of the complaint should be
 reinstated.
  AFFIRMED in part;  REVERSED in part;  and REMANDED.

  FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

End of file...