Mark Gacek and Pamela Gacek v. Avalon Dunes Condominium Owners Association, Inc., et al.

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2024-1029
_____________________________
M ARK GACEK and PAMELA
GACEK,
Appellants,
v.
AVALON DUNES C ONDOMINIUM
OWNERS A SSOCIATION , I NC ., et
al.,
Appellees.
_____________________________
On appeal from the Circuit Court for Walton County.
Jeffrey E. Lewis, Judge.
March 18, 2026
T READWELL , J.
Appellants 	Mark 	and 	Pamela 	Gacek 	have 	a 	history 	of
litigation against their condominium association, Appellee Avalon
Dunes Condominium Owners Association, Inc. (“Avalon Dunes”).
According to the Gaceks, there have been four prior lawsuits
between them. In 2023, the Gaceks filed this latest action against
Avalon 	Dunes 	to 	assert 	claims 	for 	malicious 	prosecution 	and
conspiracy to commit malicious prosecution with respect to one of
the prior lawsuits, a 2014 action by Avalon Dunes over unpaid
assessments. The trial court dismissed this latest action with
prejudice. We affirm.

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I.
As alleged, the Gaceks have owned a condominium at the
Avalon Dunes Condominium in Walton County, Florida, since
2001. In late 2014, Avalon Dunes pursued a claim against the
Gaceks 	in 	Walton 	County 	Court 	for 	unpaid 	assessments 	of
$4,027.34. The Gaceks then filed six counterclaims against Avalon
Dunes and removed the case to Circuit Court. See Case No. 15-CA-
51 (Fla. 1st Cir. Ct.) (hereinafter, the “Prior Action”).
In that Prior Action, Avalon Dunes successfully moved for
summary judgment against the Gaceks’ six counterclaims. But
with 	respect 	to 	Avalon 	Dunes’ 	original 	claim 	for 	unpaid
assessments, a jury returned a verdict in favor of the Gaceks. In
fact, the jury awarded the Gaceks a credit of $14,440.10 due to the
discovery of a check from them that Avalon Dunes had deposited
but not credited to their account. The Circuit Court entered its
final judgment reflecting the credit in favor of the Gaceks.
After prevailing before the jury on the unpaid assessments
claim, 	the 	Gaceks 	appealed 	the 	adverse 	summary 	judgment
against their six counterclaims. This Court affirmed the summary
judgment 	without 	discussion. 	Gacek 	v. 	Avalon 	Dunes 	Condo.
Owners Ass’n, Inc., 319 So. 3d 1 (Fla. 1st DCA 2021).
II.
In the present action, the Gaceks bring a claim for malicious
prosecution against Avalon Dunes based on the Prior Action. They
also bring a claim for civil conspiracy against Avalon Dunes and
its account managers, Appellees FirstService Residential Florida,
Inc. (“FirstService”), ResortQuest Northwest Florida, LLC, and
ResortQuest 	Real 	Estate 	of 	Florida, 	LLC 	(together,
“ResortQuest”), 	for 	allegedly 	presenting 	“false 	and 	incorrect”
financial evidence to the jury and the court during the Prior Action.
Appellees 	filed 	separate 	motions 	to 	dismiss 	the 	Gaceks’
complaint. Regarding the malicious prosecution claim, the trial
court ruled that the Gaceks were not the prevailing party in the
Prior Action because the Gaceks “prevailed on only one claim and
Avalon Dunes prevailed on all other claims.” Regarding the civil
conspiracy claim, the trial court ruled that the failure of the

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predicate 	claim 	for 	malicious 	prosecution 	was 	fatal 	to 	the
conspiracy claim, as well. Accordingly, the trial court dismissed the
claims 	with 	prejudice, 	explaining 	that 	amendment 	would 	be
futile.1
III.
Whether a complaint sufficiently states a cause of action is a
question of law to be reviewed de novo. Air Quality Assessors of
Fla. v. Southern-Owners Ins. Co., 354 So. 3d 569, 571 (Fla. 1st DCA
2022).
A.
On appeal, the Gaceks contend that it was improper for the
trial court to consider the full record from the Prior Action because
only certain pleadings were mentioned within the four corners of
their complaint. However, the Prior Action itself was referenced
and discussed in the complaint, and a trial court may consider
documents incorporated by reference into a complaint when ruling
on a motion to dismiss. Air Quality, 354 So. 3d at 571; Von Dyck v.
Gavin, 350 So. 3d 842, 844–45 (Fla. 1st DCA 2022). Specifically,
the Gaceks alleged how the Prior Action resolved in their favor,
thus forming the basis for the malicious prosecution claim here.
They also attached the underlying complaint, their answer and
affirmative defenses, and the final judgment from the Prior Action
to their complaint in this action.
Based on these allegations and attachments, the trial court
did not err when it considered the whole judicial record of the
underlying 	Prior 	Action—including 	the 	Gaceks’ 	failed
counterclaims—to determine whether their malicious prosecution
claim must be dismissed based on that record. See Southworth &
McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So. 2d 628, 631 (Fla. 1st
DCA 1991) (noting that documents incorporated into a complaint
that negate the pleader’s cause of action may be the basis for
1 Because we affirm the trial court’s dismissal based on these
reasons, we decline to address the trial court’s additional reasons
for 	dismissal 	based 	on 	collateral 	estoppel, 	the 	statute 	of
limitations, and the intra-corporate conspiracy doctrine.

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dismissal); see also Duncan v. Prudential Ins. Co., 690 So. 2d 687,
688 (Fla. 1st DCA 1997) (affirming dismissal where the appellant
had “specifically incorporated the previous proceedings into her
complaint by reference”).
The Gaceks’ reliance on Kest v. Nathanson, 216 So. 2d 233
(Fla. 4th DCA 1968), is unavailing. In Kest, the trial court not only
took judicial notice of the underlying action but also drew a factual
inference in favor of the defendant on whether the underlying
action was supported by probable cause, thereby defeating the
malicious prosecution claim. Id. at 234–36. Here, the trial court
did not make any inferences in favor of Appellees with respect to
the underlying record in the Prior Action.
B.
The Gaceks also argue that their counterclaims in the Prior
Action are irrelevant to this action. They contend that because
judgment was entered in their favor on the sole claim originally
brought by Avalon Dunes in the Prior Action, their malicious
prosecution claim survives here based on that singular claim,
irrespective of their unsuccessful counterclaims.
According to the Florida Supreme Court, one of the required
elements 	of 	a 	claim 	for 	malicious 	prosecution 	is 	that 	the
underlying “proceeding” must have terminated “in favor of the
present plaintiff.” Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla.
2017) (quoting Alamo Rent–A–Car, Inc. v. Mancusi, 632 So. 2d
1352, 1355 (Fla. 1994)). In context, the word “proceeding” refers to
the entire underlying action or lawsuit—not merely one cause of
action within it. See Tatum Bros. Real Est. & Inv. Co. v. Watson,
109 So. 623, 626 (Fla. 1926) (“An action for malicious prosecution
is 	an 	action 	in 	tort 	to 	recover 	damages 	for 	the 	institution,
maliciously 	and 	without 	probable 	cause, 	of 	a 	suit 	which 	has
terminated in favor of the defendant therein.” (emphasis added)).
Indeed, the terms “proceeding,” “action,” and “suit” are largely
synonymous. See Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d
294, 310 (Fla. 2017) (Lawson, J., concurring) (“[T]he word ‘action’
refers to an entire judicial proceeding or suit, whereas a ‘cause of
action’ refers to an individual claim.”).

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To 	be 	sure, 	the 	Florida 	Supreme 	Court 	in 	Warriner 	v.
Burdines, Inc. rejected an attempt to “isolate one count and base
an action for malicious prosecution upon it.” 93 So. 2d 108, 109
(Fla. 1957). It affirmed, as a matter of law, that a claim for
malicious prosecution does not lie where the plaintiff lost on one of
the counts in the underlying action. Id. at 109–10. Accordingly, we
conclude that a plaintiff must show a favorable termination of all
claims in an underlying action, not merely a favorable outcome on
the claim that the plaintiff alleges was maliciously prosecuted. See
Restatement 	(Third) 	of 	Torts 	§ 24 	cmt. 	e 	(A.L.I. 	2020) 	(“The
defendant in the original litigation may prevail on some claims but
not 	on 	others. 	That 	outcome 	generally 	does 	not 	amount 	to
favorable termination.”).
Other states have concluded similarly. See, e.g., Citizens of
Humanity, LLC v. Ramirez, 277 Cal. Rptr. 3d 501, 510 (Cal. Ct.
App. 2021) (“[F]avorable termination requires favorable resolution
of the underlying action in its entirety, not merely a single cause
of action.”); Teefey v. Cleaves, 73 S.W.3d 813, 817 (Mo. Ct. App.
2002) (quoting Joseph H. Held & Assoc., Inc. v. Wolff, 39 S.W.3d
59, 63 (Mo. Ct. App. 2001) (“To allow a party to separate the
unsuccessful claims from the successful claims in the underlying
proceeding 	and 	bring 	a 	malicious 	prosecution 	action 	on 	the
unsuccessful 	ones 	would 	invite 	a 	multitude 	of 	unwarranted
litigation 	. . . .”); 	see 	also 	Gordon 	v. 	Tractor 	Supply 	Co., 	No.
M201501049COAR3CV, 2016 WL 3349024, at *7 n.5 (Tenn. Ct.
App. June 8, 2016); Scalise v. E. Greyrock, LLC, 85 A.3d 7, 13
(Conn. App. Ct. 2014).2 Alaska recently applied the favorable
termination requirement to the underlying counterclaims, as well.
Griffith v. Hemphill, 566 P.3d 932, 940-42 (Alaska 2025).
2 But see, e.g., Peterson v. Underwood, 220 P.3d 1158, 1164
(Okla. Civ. App. 2008) (allowing a malicious prosecution claim on
a single, underlying claim, regardless of who prevailed on other
underlying claims); Cuthrell v. Zayre of Virginia, Inc., 201 S.E.2d
779, 780 (Va. 1974) (allowing a malicious prosecution claim based
on an underlying criminal count that was dismissed, even though
the plaintiff was convicted under another count).

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Such a requirement to prevail on all claims is especially
important in a case like this where the Gaceks filed numerous
counterclaims that expanded the underlying action. The Florida
Supreme Court long ago explained that “[t]he gist of the [malicious
prosecution] action is that [a] plaintiff has been improperly made
the subject of legal process resulting in his damage.” Tatum Bros.,
109 So. at 626. It would be an odd result if a plaintiff could expand
the 	legal 	process 	in 	the 	underlying 	action 	and 	then 	recover
damages suffered from that process, without prevailing in its
entirety. Here, the Gaceks greatly multiplied the scope of the Prior
Action in pursuit of their six counterclaims. Having lost on the
majority of that Prior Action, including all their counterclaims,
they cannot seek damages for the legal process they in part
created.
For these reasons, we conclude that the Gaceks failed to
plausibly allege a claim for malicious prosecution, because the
Prior Action did not terminate in their favor due to their own failed
counterclaims. As in Warriner, the Gaceks are wrongly attempting
to pursue a malicious prosecution claim by “present[ing] but half
the transaction by which [they were] so sorely aggrieved.” 93 So.
2d at 109.
C.
Next, the parties appear to recognize that the civil conspiracy
claim fails if the underlying malicious prosecution claim fails.
After all, “[t]he gist of a civil action for conspiracy is not the
conspiracy itself but the civil wrong which is alleged to have been
done pursuant to the conspiracy.” Philip Morris USA, Inc. v. Russo,
175 So. 3d 681, 686 n.9 (Fla. 2015) (quoting Loeb v. Geronemus, 66
So. 2d 241, 243 (Fla. 1953)). For that reason, Florida law “does not
recognize civil conspiracy as a freestanding tort.” Banco de los
Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1136 (Fla. 3d DCA
2018) (citing SFM Holdings Ltd. v. Banc of Am. Secs., LLC, 764
F.3d 	1327, 	1338–39 	(11th 	Cir. 	2014)). 	The 	conspiracy 	“is
inextricably linked with the underlying tort.” Id.
Accordingly, because the claim for malicious prosecution was
properly 	dismissed, 	the 	Gaceks 	cannot 	sustain 	a 	claim 	for
conspiracy to commit malicious prosecution. See Weisman v. S.
Wine & Spirits of Am., Inc., 297 So. 3d 646, 652 (Fla. 4th DCA

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2020); Buchanan v. Miami Herald Publ’g Co., 206 So. 2d 465, 469
(Fla. 3d DCA 1968), modified, 230 So. 2d 9 (Fla. 1969). Thus, the
trial court did not err by dismissing the conspiracy claim.
D.
Finally, the Gaceks challenge the trial court’s dismissal of
their 	action 	with 	prejudice. 	“Dismissal 	of 	a 	complaint 	with
prejudice should only be granted when the pleader has failed to
state a cause of action and it conclusively appears there is no
possible way to amend the complaint to state a cause of action.”
Fla. Nat’l Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla.
1st DCA 2002) (quoting Undereducated Foster Child. of Fla. v. Fla.
Senate, 700 So. 2d 66, 67 (Fla. 1st DCA 1997)). In other words,
leave to amend may be denied where the proposed amendment
would be futile. Id.
As explained above, this action is properly dismissed because
the Prior Action did not terminate in favor of the Gaceks. The clear
record in that Prior Action will not change based on additional
allegations here. In other words, there is no possible way for the
Gaceks to amend their complaint to plausibly state a cause of
action based on that Prior Action. Therefore, amendment would be
futile, and the trial court properly dismissed this action with
prejudice.
A FFIRMED.
W INOKUR and M.K. THOMAS, JJ., concur.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Christine Riley Davis of Davis Appeals, PLLC, St. Petersburg, for
Appellants.

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Lissette Gonzalez, Michael Brian Kelly, and Kayla Nicole Ryan of
Cole, Scott & Kissane, P.A., Miami, for Appellee FirstService
Residential Fla., Inc.
Scott 	David 	Stevens 	of 	Starnes 	Davis 	Florie, 	LLP, 	Mobile,
Alabama, 	for 	Appellee 	Avalon 	Dunes 	Condominium 	Owners
Association, Inc.
Sara Kay Grover and Benjamin Chase Patton of McRae & Metcalf,
P.A., Tallahassee, for Appellee ResortQuest Real Estate of Fla.,
LLC.