Jose A. Rivero, Appellant,
David A. Howard, Esq., etc., et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County No.
09-42627, Robert J. Luck, Judge.
A. Rivero, in proper person.
S. Molansky, for appellees.
ROTHENBERG, EMAS and FERNANDEZ, JJ.
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
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
Miami-Dade 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.
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
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, Rivero 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. The trial court agreed, and entered final
summary judgment in favor of appellees. 
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 1225, 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.
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).
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
reasonable 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 ...