Shew et al v. Horvath

Filing 55

ORDER: Defendant William Horvath's Motion for Summary Judgment (Doc. # 50 ) is granted. Plaintiffs Rickey and Frances Shew's Motion for Partial Summary Judgment (Doc. # 49 ) is denied. The Clerk is directed to enter judgment in favor of Defendant William Horvath, and thereafter close the case. Signed by Judge Virginia M. Hernandez Covington on 4/19/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICKEY SHEW and FRANCES SHEW,
Plaintiffs,
v.

Case No.: 8:16-cv-766-T-33JSS

WILLIAM HORVATH,
Defendant.
______________________________/
ORDER
This
Plaintiffs

matter

comes

Rickey

and

before

Frances

the
Shew’s

Court
Motion

pursuant
for

to

Partial

Summary Judgment, (Doc. # 49), filed on February 16, 2017,
and Defendant William Horvath’s Motion for Summary Judgment,
(Doc. # 50), filed on March 1, 2017. Because Horvath is
entitled to qualified immunity, the Shews’ Motion is denied
and Horvath’s Motion is granted.
I.

Background
Plaintiffs Rickey and Frances Shew are a married couple

from Hernando County, Florida. (Doc. # 49-3 at 1; Doc. # 494 at 1; R. Shew Dep. Doc. # 50-3 at 24:5-9). In 2008, Mrs.
Shew noticed cracks in the walls of their home and contacted
the

couple’s

homeowners

insurance

company,

Florida

Farm

Bureau, to inspect the damage. (F. Shew Dep. Doc. # 49-7 at

1

48:2-49:2; Doc. # 50-10 at 1). Farm Bureau sent experts from
two different engineering and geological firms to determine
whether there was a sinkhole on the Shews’ property causing
the

structural

damage.

Both

the

initial

experts,

HSA

Engineering and Scientists, and the firm hired to do a peer
review of HSA’s findings, Universal Engineering Sciences,
concluded that the cause of the damage was not a sinkhole.
(Doc. # 49-3 at 1; Doc. # 27-1 at 112). Then, in May of 2009,
Farm Bureau notified the Shews that it would not renew their
policy. (Doc. # 27-1 at 115).
After Farm Bureau refused to renew their policy, the
Shews contracted with a public adjuster through whom they
hired an attorney to contest Farm Bureau’s determination.
(Doc. # 49-3 at 1; Doc. # 49-4 at 1; Horvath Dep. Doc. # 271 at 17:8-19). In their complaint filed against Farm Bureau,
the Shews alleged: “On or about December 15, 2008, the Insured
Property was damaged by a sinkhole and/or sinkhole activity
and MR & MRS. SHEW suffered a loss to their Insured Property
and they continue to suffer such loss.” (Doc. # 34-3 at 2).
The Shews, through their public adjuster and attorney, hired
Bay

Area

Sinkhole

Investigation

and

Civil

Engineering

(B.A.S.I.C.). B.A.S.I.C. inspected the property and prepared
a report concluding that the structural damage to the Shews’
2

home was caused by sinkhole activity. (Doc. # 49-3 at 1; Doc.
# 50-7 at 4). After reviewing B.A.S.I.C.’s report, Universal
Engineering changed its opinion and approved the sinkhole
finding by B.A.S.I.C. (Doc. # 49-3 at 1; Doc. # 49-4 at 1).
B.A.S.I.C.’s

report

estimated

that

sinkhole

remediation

procedures to shore up the home’s foundation would cost
between $107,185 and $124,185. (Doc. # 50-7 at 4). The Shews
received a copy of B.A.S.I.C.’s report and kept it in their
home, but they claim they did not read it. (R. Shew Dep. Doc.
# 50-3 at 70:3-11).
The Shews and Farm Bureau then entered a settlement
agreement for $240,000, which was signed on August 16, 2010.
(Doc. # 50-10). The document, signed by both Mr. and Mrs.
Shew, states the Shews’ “property suffered a covered loss due
to sinkhole activity on or around December 15, 2008.” (Id. at
1). The document also specifies Farm Bureau “[did] not admit
to liability of any sort.” (Id. at 3). Following the dismissal
of the lawsuit, in October of 2010, Farm Bureau filed a
document

with

the

Hernando

County

Clerk,

which

states:

“Pursuant to Florida Statute [section] 627.7073(2)(a), please
find the enclosed land subsidence report which confirms and
certifies sinkhole activity at the residence of Rick and Fran
Shew . . . .” (Doc. # 50-6). No sinkhole remediation was
3

performed on the Shews’ property. (Horvath Dep. Doc. # 27-1
at 18:15-18; Doc. # 49-3 at 1). Instead, Mr. Shew patched the
cracks in the home’s walls with drywall. (Horvath Dep. Doc.
# 27-1 at 18:15-18; R. Shew Dep. Doc. # 50-3 at 73:15-74:14).
The Shews paid off the mortgage on their home in 2010, and a
satisfaction of mortgage document was filed with the Hernando
County Clerk on September 16, 2010. (Doc. # 49-3 at 2; Doc.
# 27-1 at 128).
Years later, in 2014, the Shews put their home up for
sale, using Catherine Sickler as their real estate agent. (F.
Shew Dep. Doc. # 49-7 at 69:18-70:1). The Shews subsequently
entered into a contract to sell the property for $229,000 to
the Jernigans, in June of 2015. (Doc. # 34-5). That sales
contract read in part:
SELLER DISCLOSURE: Seller knows of no facts
materially affecting the value of the Real Property
which are not readily observable and which have not
been disclosed to the Buyer. Except as provided for
in the preceding sentence, Seller extends and
intends no warranty and makes no representation of
any type, either express or implied, as to the
physical condition or history of the Property.
Except as otherwise disclosed in writing Seller has
received no written or verbal notice from any
governmental entity or agency as to a currently
uncorrected building, environmental or safety code
violation.
(Doc. # 34-5 at 12)(emphasis added). The sales contract had
a “time is of the essence” clause, requiring the Jernigans to

4

apply for a mortgage within five days of the contract’s
execution. (Id. at 2). The sales contract was also contingent
upon the Jernigans “obtaining a written loan commitment”
within thirty days. (Id.).
After being alerted by a friend that the Shews’ home may
have a sinkhole and having their application for homeowners
insurance

denied

by

State

Farm,

the

Jernigans

became

suspicious. (Doc. # 49-5 at 1; Doc. # 49-6 at 1-2; Jernigan
Dep. Doc. # 50-2 at 21:13-18). Mr. Jernigan contacted his
real estate agent, who in turn contacted the Shews’ real
estate agent, Ms. Sickler, to discuss the sinkhole issue.
(Jernigan Dep. Doc. # 50-2 at 22:17-25; Doc. # 49-5 at 1-2).
Ms. Sickler turned over various documents to Mr. Jernigan
about

the

obtained

investigation
from

the

of

Shews’

the
house

sinkhole,
with

which

their

she

had

permission.

(Horvath Dep. Doc. # 27-1 at 24:23-25:4; Jernigan Dep. Doc.
# 50-2 at 23:8-14; 27:2-19).
Having learned of the sinkhole problem, Mr. Jernigan
again offered to buy the home, but only at the reduced price
of $100,000. (Doc. # 49-5 at 2-3; Doc. # 49-6 at 3). After
the Shews rejected Mr. Jernigan’s lower offer, the Jernigans
sought to have the $1,000 in escrow and $514 in inspection
fees returned to them. (Doc. # 49-5 at 3; Doc. # 49-6 at 3).
5

The Shews sent a check for the Jernigans’ costs to the title
insurance company handling the transaction, along with a
letter requesting the Jernigans sign it as a release from any
legal action against them. (Doc. # 49-5 at 3). The Jernigans
left the money in the insurance company’s account and refused
to sign the letter. (Id.).
Mr. Jernigan contacted the Hernando County Sheriff’s
Office to initiate an investigation of the Shews’ conduct.
Mr.

Jernigan

spoke

with

Horvath,

a

detective

with

the

Sheriff’s Office, by phone on October 1, 2015. (Horvath Dep.
Doc. # 27-1 at 4:12-17; 10:3-11). He informed Horvath that
“he wanted to buy a house and signed a contract on it and
realized that the house had a sinkhole that he didn’t know
about, that he wasn’t told about.” (Id. at 10:3-11). During
that conversation, Horvath arranged an in-person interview
with the Jernigans for October 5, 2015. (Id. at 10:13-14).
During the interview, Mr. and Mrs. Jernigan filled out
written statements. (Doc. # 49-5; Doc. # 49-6). In his written
statement, Mr. Jernigan wrote:
The first time I looked at the house the homeowner
was there, while speaking with the homeowner, I
asked about any problems the home may have had.
Rick Shew told me the light fixture had an exposed
wire and he fixed it. That was the only deficiency
he brought to my attention.

6

(Doc. # 49-5 at 1). Mr. Jernigan also gave the documents in
his possession to Horvath. (Jernigan Dep. Doc. # 50-2 at
40:18-41:3). During his investigation, Horvath obtained a
copy of the sales contract, a copy of the Shews’ complaint
against Farm Bureau, the settlement agreement between the
Shews and Farm Bureau, the document Farm Bureau filed with
the Hernando County Clerk in October of 2010, and the expert
reports from Universal Engineering and B.A.S.I.C. (Doc. # 271 at 53-64; 110-12; 117-29; Doc. # 34-3; Doc. # 50-7).
Although Mr. Jernigan had applied for a mortgage within
five days after execution of the contract, he did not inform
Horvath of that fact. (Jernigan Dep. Doc. # 50-2 at 17:2418:3). Thus, while executing the probable cause affidavits,
Horvath did not know if the disclosures signed by the Shews
were relied upon by a mortgage lender and did not know if the
sales contract qualified as part of the mortgage lending
process. (Horvath Dep. Doc. # 27-1 at 32:4-8; 39:9-24).
Horvath separately interviewed Mr. and Mrs. Shew over
the phone because the Shews were out of the state. During his
conversation with Mrs. Shew, Horvath asked if she remembered
filing a sinkhole claim with Farm Bureau. (Horvath Dep. Doc.
# 27-1 at 19:15-17). According to Horvath, “[s]he responded
by stating that she and her husband had a sinkhole company
7

come out and were told they did not have a sinkhole. Then
[she] stated that they had a sinkhole attorney because the
Farm Bureau Insurance canceled their insurance and a claim
was never filed.” (Id. at 19:17-22).
Mrs.

Shew

also

indicated

she

believed

the

lawsuit

against Farm Bureau was for the bad faith non-renewal of their
insurance policy, rather than for a sinkhole. (Horvath Dep.
Doc. # 27-1 at 20:11-21:3). She emphasized Mr. Shew handled
all issues related to the lawsuit and she did not read the
settlement agreement or know there was a sinkhole. (Id.; F.
Shew Dep. Doc. # 49-7 at 104:12-17). Similarly, during her
deposition, Mrs. Shew asserted that Mr. Shew handled the sale
of the home and that she did not interact with the Jernigans.
(F. Shew Dep. Doc. # 49-7 at 84:20-85:1; 85:4-5).
During his conversation with Horvath, Mr. Shew told
Horvath he had no idea the house had a sinkhole problem, but
“admitted that he filed an insurance claim with Farm Bureau
due to structural damage in his house.” (Horvath Dep. Doc. #
27-1 at 16:21-24). After Farm Bureau refused to renew the
homeowners

policy,

Mr.

Shew

“claimed

he

hired

a

public

adjuster named Ricky Seidel to handle the non-renewal,” which
Horvath found unconvincing “because public adjusters do not
handle

non-renewal.”

(Id.

at
8

17:8-11).

Mr.

Shew

also

acknowledged “Seidel inspected his home and believed the
damages were caused by a sinkhole,” which Horvath considered
a contradiction of Mr. Shew’s claim that the lawsuit was about
the

non-renewal.

(Id.

at

17:14-19).

Then,

as

Horvath

described in his deposition,
[Mr. Shew] made another statement that made no
sense based on his self-proclaimed ignorance. He
stated that prior to listing the home on the market,
he checked with the Hernando County Clerk and
property appraiser to see if any official reports
had been on file against his home and property
regarding confirmed sinkhole activity. He claimed
to have found nothing. However, I discovered an
official document that was filed by Farm Bureau
Insurance stating just that, dated October 6, 2010,
and recorded on October 14, 2010.
(Id. at 18:4-12). Mr. Shew also acknowledged in his interview
with

Horvath

that

“no

sinkhole

remediation

process

ever

occurred on the property and the only repairs were done by
him, which was patching cracks in the drywall.” (Id. at 18:1518).
Although he spoke with the Shews, Horvath never went to
their home to inspect whether the sinkhole and resulting
structural damage were “readily observable.” (Id. at 25:1326:6). Instead, he reviewed the engineering reports in his
possession regarding the sinkhole and damage to the Shews’
home, which indicated there were cracks in the walls when the
reports were made in 2009 and 2010. (Id. at 26:7-14). At the

9

time of the affidavit, Horvath also did not know how much of
the $240,000 settlement the Shews ultimately received. (Id.
at 35:4-11).
In addition, Horvath interviewed the Shews’ real estate
agent, Ms. Sickler. Ms. Sickler “presented [Horvath] with
information/documents that she had in her files pertaining to
the residence, which included the paperwork for the window
and

door

replacement,

the

sales

contract

between

the

Jernigans and the Shews, and the letter that she sent with
the refund check to finalize the matter.” (Id. at 23:13-20).
According to Horvath:
Even though I never brought the subject up,
Catherine spontaneously uttered, “And when I asked
them about this, they had no idea.” Then she paused.
And then she said, “No idea,” she explained it. I
responded to her statement by asking, “Asked them
about what?” And Catherine responded, “I said are
you kidding me? This is a sinkhole house. I needed
to disclose that.”
(Id. at 24:3-10). Sickler also “confirmed that [Mrs. Shew]
was involved in the sales process, but [Mr. Shew] had the
say-so because she still works and he is retired.” (Id. at
23:20-22).
On October 12, 2015, Horvath executed probable cause
affidavits outlining the results of his investigation to
obtain arrest warrants for the Shews. (Doc. # 49-3 at 2; Doc.

10

# 49-4 at 2). Horvath brought the affidavits to an assistant
state attorney, who approved and told Horvath to take them to
the judge. (Horvath Dep. Doc. # 27-1 at 12:2-7; 45:1-5). The
probable cause affidavit for Mr. Shew, which is substantially
the same as that for Mrs. Shew, states:
Before
Me,
the
undersigned
authority,
personally appeared Detective William Horvath who,
being duly sworn, alleges, on information and
belief, that on the 16th day of June, 2015, in
Hernando County, Florida, the defendant did:
Commit the offense of Mortgage Fraud through a
coordinated scheme involving the defendant’s spouse
and co-habitant, Frances Shew [], by making
material
misstatement,
misrepresentation,
and
omission that would be relied upon by a mortgage
lender involving the contracted sale of their
residence . . . to buyer (victim) Christopher
Jernigan.
This case involves the signed contract regarding
the sale of a home in Hernando County that is owned
by the defendant and his wife Frances Shew. . . .
In 2008, the home was insured by Florida Farm Bureau
Insurance Company . . . .
In December 2008, the defendant and co-defendant
filed claim number 455980 with Farm Bureau
Insurance reference[s] damages observed to the
structure of the residence. Per [Florida Statutes
section] 627.707, Farm Bureau Insurance initiated
a geotechnical investigation of the residence,
using HSA Engineering and Scientists . . . . The
defendant and co-defendant were notified of the
subsidence investigation in April of 2009. The
report by HSA Engineering was conducted on
September 14, 2009, and stated that “sinkhole
activity is not a cause of the noted damage in the
structure.”

11

In order to appease the defendant and co-defendant,
Florida Farm Bureau Insurance Company requested a
Peer Review of the HSA subsurface exploration. The
insurance company solicited Universal Engineering
Sciences, including Professional Geologist Meagan
Gonzales [] and Professional Engineer Mark K. Hardy
[] to review the report. Both concluded that they
agreed with the HSA report that the damages were
not attributed to sinkhole activity.
The defendant and co-defendant contracted with
Florida State Insurance Adjusters, Inc. . . . They
were represented by Public Adjuster Randy Seidel,
who arranged a contract between the defendant, codefendant, and Attorneys Danahy & Murray . . . .
The defendant and co-defendant filed suit against
Florida Farm Bureau Insurance Company for what was
policy limits, totaling $240,000.00. [] Another
subsidence investigation was performed by a company
named B.A.S.I.C. (Bay Area Sinkhole Investigation
and Civil Engineering) . . . . Professional
Geologiest David E. Hewitt [] and Professional
Engineer Justin D. James [] performed the
investigation. Their report was released on June
29, 2010, and stated “sinkhole activity is the
cause of structural distress at the Shew residence
within a reasonable, professional probability.” On
August 10, 2010, the same professional engineers
from Universal Engineering Sciences submitted their
approval of the findings in the B.A.S.I.C. report.
On August 16, 2010, the defendant and co-defendant
were awarded the sum total of $240,000.00 in a
settlement with Florida Farm Bureau Insurance
Company.
The
Lawsuit
was
dismissed
without
prejudice on August 20, 2010.
On October 6, 2010, Florida Farm Bureau Insurance
Company filed Hernando County Clerk document #
2010054791 referenc[ing] the UES report confirming
sinkhole activity pursuant to [Florida Statutes
section] 627.7073(2)(a). There are zero Notices of
Commencement regarding sinkhole remediation on file
with the Hernando County Clerk. There are zero
sinkhole remediation reports or Engineer’s Final

12

Inspection Reports on file with the Hernando County
Clerk regarding this property.
On September 16, 2010, Hernando County Clerk
document # 2010049657 was filed referenc[ing] the
Satisfaction of Mortgage for loan number 0017604349
belonging to Wells Fargo Home Mortgage, Inc.
On June 16, 2015, the defendant and co-defendant
entered into a contract to sell their home to
Christopher Jernigan. The defendant and codefendant DID NOT disclose that the home had
confirmed sinkhole damage, and offered the home
with an asking price of $250,000.00 (full market
value). The purchase price of $229,000.00 was
agreed upon between the buyer and the defendant and
co-defendant.
Paragraph (j) of the sales contract disclosure
statement reads:
“Seller knows of no facts materially affecting the
value of the Real Property which are not readily
observable and which have not been disclosed to the
Buyer. Except as provided for in the preceding
sentence, Seller extends and intends no warranty
and makes no representation of any type, either
express or implied, as to the physical condition or
history of the Property. Except as otherwise
disclosed in writing Seller has received no written
or verbal notice from any governmental entity or
agency as to a currently uncorrected building,
environmental or safety code violation.”
Even though the defendant profited greatly from the
insurance pay-out, the defendant claims to have no
knowledge of any sinkhole
activity at his
residence, even though he was completely and fully
involved in the sinkhole investigation and lawsuit.
(Doc.

#

49-3)(emphasis

affidavits

to

a

original).

Hernando

County

After
circuit

presenting
judge,

the

Horvath

obtained arrest warrants for the Shews on October 12, 2015,

13

for violation of Section 817.545(2)(a), Fla. Stat. (Doc. ##
50-1). That section states:
A person commits the offense of mortgage fraud if,
with the intent to defraud, the person knowingly:
(a)
Makes
any
material
misstatement,
misrepresentation, or omission during the mortgage
lending process with the intention that the
misstatement, misrepresentation, or omission will
be relied on by a mortgage lender, borrower, or any
other person or entity involved in the mortgage
lending process; however, omissions on a loan
application regarding employment, income, or assets
for a loan which does not require this information
are not considered a material omission for purposes
of this subsection.
Fla. Stat. § 817.545(2)(a).
The Shews turned themselves in to the Hernando County
Sheriff’s Department on October 16, 2015. (Doc. # 27-1 at
103). The Shews were incarcerated for a few hours before being
released on bond. (Doc. # 49-1 at ¶¶ 3, 7; F. Shew Dep. Doc.
# 49-7 at 135:9-10). The State Attorney subsequently decided
not to prosecute the case and filed a no information. (Doc.
# 49-1 at ¶ 4). Thereafter, the Shews initiated this 42 U.S.C.
§ 1983 action on March 30, 2016. (Doc. # 1).
In the Complaint, the Shews allege Horvath violated
their Fourth Amendment right to be free of unreasonable
searches and seizures by arresting them on the basis of faulty
probable cause affidavits. (Id. at ¶¶ 1, 12). As a result of
their arrest, the Shews incurred damages in the form of

14

attorney’s fees, and “monies expended in posting a bond for
their

release

from

jail,

as

well

as

damage

to

their

reputation, embarrassment, and emotional distress.” (Id. at
¶ 13). Horvath filed his Answer on May 10, 2016. (Doc. # 5).
On September 8, 2016, the Shews filed a motion for partial
summary judgment as to liability (Doc. # 26), which the Court
denied as premature on November 10, 2016. (Doc. # 40). After
mediation resulted in an impasse (Doc. # 43), the Shews filed
their renewed Motion for Partial Summary Judgment on February
16, 2017. (Doc. # 49). Horvath filed his Motion for Summary
Judgment on March 1, 2017. (Doc. # 50). Responses and replies
have been filed for each Motion. (Doc. ## 51-54). The Motions
are ripe for review.
II.

Legal Standard
Summary Judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).

15

An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
16

344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However,

nothing

if

“more

allegations,”

the

than

non-movant’s

summary

a

repetition

judgment

is

response
of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Finally,

the

filing

of

cross-motions

for

summary

judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions must
be considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.” Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–
39 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary
judgment

will

not,

granting

summary

in

themselves,

judgment

unless
17

warrant
one

of

the

the

court

in

parties

is

entitled to judgment as a matter of law on facts that are not
genuinely disputed . . . .”)(quotation omitted).
III. Analysis
A.

Qualified Immunity

“A government official who is sued under § 1983 may seek
summary

judgment

on

the

ground

that

he

is

entitled

to

qualified immunity.” Crosby v. Monroe Cty., 394 F.3d 1328,
1332 (11th Cir. 2004). In his Motion and response to the
Shews’ Motion, Horvath argues he is entitled to qualified
immunity. (Doc. # 50 at 3; Doc. # 51 at 2).
“Qualified

immunity

affords

complete

protection

to

government officials sued individually,” Terrell v. Smith,
668 F.3d 1244, 1250 (11th Cir. 2012), except in cases where
“the law preexisting the defendant official’s supposedly
wrongful act was already established to such a high degree
that every objectively reasonable official standing in the
defendant’s place would be on notice that what the defendant
official

was

doing

would

be

clearly

unlawful

given

the

circumstances,” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th
Cir. 2002). Qualified immunity “protect[s] from suit ‘all but
the plainly incompetent or one who is knowingly violating the
federal law.’” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

18

2002)(quoting Willingham v. Loughnan, 261 F.3d 1178, 1187
(11th Cir. 2001)).
“[T]he

official

must

first

establish

that

he

was

performing a ‘discretionary function’ at the time the alleged
violation of federal law occurred.” Crosby, 394 F.3d at 1332.
“To

determine

whether

an

official

was

engaged

in

a

discretionary function, [a court] consider[s] whether the
acts the official undertook ‘are of the type that fell within
the employee’s job responsibilities.’” Id. (quoting Holloman
ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.
2004)).
The Shews do not contest that Horvath was performing a
discretionary function when he investigated them and executed
the probable cause affidavits. (Doc. # 49 at 10-11). For good
reason. “Making an application for an arrest warrant clearly
falls

within

detective

the

and,

official
therefore,

responsibilities
within

the

of

ambit

a

police
of

his

discretionary functions.” Evans v. City of Plant City, No.
8:07-cv-639-T-MAP, 2007 WL 2916454, at *3 (M.D. Fla. Oct. 5,
2007)(citing Malley v. Briggs, 475 U.S. 335, 342-43 (1986)).
Next,

the

Court

follows

a

two-part

analysis

in

determining whether qualified immunity applies. Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). The first part
19

asks

“whether

[the]

plaintiff’s

allegations,

if

true,

establish a constitutional violation.” Id. (quoting Hope v.
Pelzer, 536 U.S. 730, 736 (2002))(internal quotation marks
omitted)

(alteration

in

original).

The

second

part

asks

“whether the right was clearly established.” Id. (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other
grounds

by

Pearson

(2009)))(internal

v.

Callahan,

quotation

marks

555

U.S.

omitted).

223,

Courts

236
have

discretion to decide the order in which to address the two
parts.

Pearson,

555

U.S.

at

236.

Nevertheless,

“[b]oth

elements . . . must be satisfied for an official to lose
qualified immunity.” Grider v. City of Auburn, 618 F.3d 1240,
1254 (11th Cir. 2010).
B.

False Arrest or Malicious Prosecution?

As a preliminary matter, the parties disagree over the
nature of the claim asserted by Shews. The Shews characterize
their Complaint as bringing a § 1983 claim for malicious
prosecution (Doc. # 49 at 17), whereas Horvath argues the
Complaint asserts only a single claim for false arrest, (Doc.
# 50 at 2). The Court agrees with the Shews: “‘an unlawful
arrest pursuant to a warrant [is] more closely analogous to
the common law tort of malicious prosecution,’ than the common
law tort of false arrest.” Smith v. City of Fairburn, No. 1620

11800,

2017

WL

603840,

at

*4

n.6

(11th

Cir.

Feb.

15,

2017)(quoting Calero-Colon v. Betancourt-Lebron, 68 F.3d 1,
4 (1st Cir. 1995) and citing Whiting v. Traylor, 85 F.3d 581,
585 (11th Cir. 1996)). Regardless, this case turns on the
issue of probable cause, as the existence of arguable probable
cause is a complete bar to both false arrest and malicious
prosecution claims. As discussed in depth below, if Horvath
had arguable probable cause to arrest the Shews, then he is
entitled to qualified immunity and the Shews’ § 1983 claim —
whether for false arrest or malicious prosecution — must fail.
C.

Arguable Probable Cause

Under the Fourth Amendment, an individual has a right to
be

free

from

“unreasonable

searches

and

seizures.”

U.S.

Const. amend. IV. An arrest is a seizure of the person. Skop
v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). An
arrest without probable cause violates the Constitution and
provides a basis for a § 1983 claim, but the existence of
probable cause at the time of the arrest constitutes an
absolute bar to a § 1983 action for false arrest or malicious
prosecution. See Case v. Eslinger, 555 F.3d 1317, 1326–27
(11th Cir. 2009)(noting that “[t]he existence of probable
cause at the time of arrest . . . constitutes an absolute bar
to a section 1983 action for false arrest” (quotation marks
21

and citation omitted)); see also Rhodes v. Kollar, 503 F.
App’x 916, 922 (11th Cir. 2013)(“The existence of probable
cause constitutes an absolute bar to claims for malicious
prosecution.”).
“To receive qualified immunity, an officer need not have
actual probable cause, but only ‘arguable’ probable cause.”
Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir.
2010)(citing Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th
Cir. 2003); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.
1997)). Arguable probable cause exists where “reasonable
officers in the same circumstances and possessing the same
knowledge as the Defendants could have believed that probable
cause existed to arrest Plaintiff.” Kingsland v. City of
Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)(quotation marks
omitted).
“An

arresting

officer

is

required

to

conduct

a

reasonable investigation to establish probable cause.” Rankin
v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). An officer
“cannot conduct a biased investigation, or elect not to obtain
easily discoverable facts, or ignore relevant information
negating probable cause.” Evans, 2007 WL 2916454, at *4
(citing Kingsland, 382 F.3d at 1229). Yet, officers do not
have

“an

affirmative

obligation
22

to

seek

out

exculpatory

information of which the officer is not aware” or “track down
every lead” before making a probable cause determination.
Kelly v. Curtis, 21 F.3d 1544, 1551–52 (11th Cir. 1994).
“‘Once probable cause is established, an officer is under no
duty to investigate further or to look for additional evidence
which may exculpate the accused.’” City of Fairburn, 2017 WL
603840, at *7 (quoting Ahlers v. Schebil, 188 F.3d 365, 371
(6th Cir. 1999)).
Whether a particular set of facts gives rise to probable
cause or arguable cause for arrest depends on the elements of
the

crime.

probable

Crosby,

cause

does

394

F.3d

not,

at

1333.

however,

“Showing

require

arguable

proving

every

element of a crime.” Brown, 608 F.3d at 735 (citing Scarbrough
v. Myles, 245 F.3d 1299, 1302–03 (11th Cir. 2001)). Requiring
so “would negate the concept of probable cause and transform
arresting officers into prosecutors.” Scarbrough, 245 F.3d at
1302–03.
“In cases where a facially valid arrest warrant is
issued, a judge has already determined that probable cause
existed.” Miller v. Eslinger, No. 6:10-cv-1221-Orl-31, 2011
WL 4481260, at *3 (M.D. Fla. Sept. 27, 2011). Therefore,
whether a constitutional violation has occurred turns on
whether the underlying affidavit was based on misstatements
23

that were deliberately false or made with reckless disregard
for the truth or was “so lacking in indicia of probable cause
as to render official belief in its existence unreasonable.”
Drudge v. City of Kissimmee, 581 F. Supp. 2d 1176, 1186 (M.D.
Fla.

2008)(internal

quotations

omitted).

“The

Eleventh

Circuit defines ‘reckless disregard for the truth’ to include
instances
error,

where

or

at

the

affiant

least

‘should

harbored

have

serious

recognized

doubts’

the

about

his

representations.” Evans, 2007 WL 2916454, at *3 (quoting
United States v. Kirk, 781 F.2d 1498, 1502-03 (11th Cir.
1986)). But, “when material that is the subject of the alleged
falsity or reckless disregard is set to one side, [and] there
remains

sufficient

content

in

the

warrant

affidavit

to

support a finding of probable cause,” then the warrant is
valid. Franks v. Delaware, 438 U.S. 154, 171 (1978).
A probable cause affidavit also violates the Fourth
Amendment “when it contains omissions ‘made intentionally or
with a reckless disregard for the accuracy of the affidavit.’”
Madiwale

v.

Savaiko,

117

F.3d

1321,

1326-27

(11th

Cir.

1997)(quoting United States v. Martin, 615 F.2d 318, 329 (5th
Cir. 1980)). Direct evidence of recklessness is not required;
“[r]ather, it ‘is possible that when the facts omitted from
the affidavit are clearly critical to a finding of probable
24

cause the fact of recklessness may be inferred from proof of
the omission itself.’” Id.
“Omissions that are negligent rather than reckless are
of no constitutional magnitude and will not invalidate a
warrant.” Smith v. Sheriff, Clay Cty., 506 F. App’x 894, 898
(11th Cir. 2013)(citing Madiwale, 117 F.3d at 1327). The
omissions must also be material or significant to invalidate
a warrant; “[i]ndeed, even intentional or reckless omissions
will invalidate a warrant only if inclusion of the omitted
facts would have prevented a finding of probable cause.”
Madiwale, 117 F.3d at 1327 (citation omitted).
Where the facts are undisputed, whether probable cause
existed is a question of law. Marx v. Gumbinner, 905 F.2d
1503, 1506 (11th Cir. 1990); see also Walczyk v. Rio, 496
F.3d 139, 157 (2d Cir. 2007)(“In this case, there can be no
dispute as to what facts the defendants relied on to establish
probable cause for the challenged arrest and searches; they
are memorialized in warrant affidavits. Thus, whether the
affidavits, on their face, demonstrate probable cause[ ] is
a question of law.”). “In a case such as this one involving
an arrest pursuant to a warrant, the matter of whether a
constitutional violation has occurred turns on the contents

25

of the affidavit that was presented in support of the arrest
warrant.” Drudge, 581 F. Supp. 2d at 1186.
The Shews present multiple arguments for why Horvath’s
investigation was insufficient and why his probable cause
affidavit was executed with deliberate falsity or reckless
disregard for the truth. The Court addresses each issue in
turn.
1.

Mortgage Lending Process

The mortgage fraud statute criminalizes only material
misstatements made during the mortgage lending process. See
Fla. Stat. § 817.545(2)(a) (“A person commits the offense of
mortgage fraud if, with the intent to defraud, the person
knowingly:

(a)

Makes

any

material

misstatement,

misrepresentation, or omission during the mortgage lending
process . . .” (emphasis added)). “[T]he term ‘mortgage
lending process’ means the process through which a person
seeks or obtains a residential mortgage loan, including, but
not limited to, the solicitation, application or origination,
negotiation

of

terms,

third-party

provider

services,

underwriting, signing and closing, and funding of the loan.”
Fla. Stat. § 817.545(1).
The Shews emphasize the probable cause affidavits do not
specify whether the mortgage lending process had actually
26

begun.

Rather,

mortgage

the

fraud

affidavits

“by

making

state
[a]

the

Shews

material

committed

misstatement,

misrepresentation, and omission that would be relied upon by
a mortgage lender involving the contracted sale of their
residence.” (Doc. # 49-3 at 1; Doc. # 49-4 at 1)(emphasis
added). And, Horvath admitted during his deposition that he
did not know if the Shew’s misstatement or omission was relied
upon by a mortgage lender and did not know if the sales
contract qualified as part of the mortgage lending process.
(Horvath Dep. Doc. # 27-1 at 32:4-8; 39:9-24).
The Shews insist that no reasonable officer would have
executed

the

investigating

probable
whether

cause
the

affidavits

mortgage

before

lending

further

process

had

actually begun because that element of the crime had not been
definitely established. (Doc. # 49 at 17). “Showing arguable
probable
element

cause
of

a

does

not,

crime.”

however,

Brown,

608

require
F.3d

at

proving
735

every

(citing

Scarbrough, 245 F.3d at 1302–03).
Thus, it was unnecessary for Horvath to have direct
confirmation that the Jernigans had applied for a mortgage
after

signing

officer

in

the

sales

Horvath’s

contract.

position

Rather,

could

have

a

reasonable

believed

the

Jernigans had initiated the mortgage lending process because
27

the “time is of the essence” clause in the sales contract
required the Jernigans to apply for a mortgage within five
days of the contract’s execution. See (Doc. # 34-5 at 2).
And, to the extent Horvath may have been confused about
whether the execution of the sales contract qualified as part
of the mortgage lending process, “[u]nder qualified immunity,
an officer is protected from suit when he makes a reasonable
mistake of law or fact.” Watts v. City of Opelika, No. 3:13cv-742-MHT-PWG, 2015 WL 7450407, at *13 (M.D. Ala. Aug. 26,
2015)(citing Pearson, 555 U.S. at 231).
While it would have been a better practice to determine
whether the mortgage lending process was underway before
executing the affidavits, Horvath was not required to confirm
that after determining probable cause existed. See City of
Fairburn, 2017 WL 603840, at *7 (“Once probable cause is
established, an officer is under no duty to investigate
further or to look for additional evidence which may exculpate
the

accused.”

(citation

and

internal

quotation

marks

omitted)). Thus, the Court disagrees with the Shews that
Horvath’s investigation of the “mortgage lending process”
element of the crime was unreasonable.
Next, regarding whether Horvath made a deliberately or
recklessly false statement or omission in his affidavit, the
28

Court notes that Horvath did not falsely state that a mortgage
lender had relied on the Shews’ misstatement or omission about
the

sinkhole.

There

is

no

conflict

between

Horvath’s

statement that he believed the Shews’ disclosure in the sales
contract “would be relied upon by a mortgage lender” and his
acknowledgment that he did not know for certain that the
Jernigans had applied for a mortgage. (Doc. # 49-3; Horvath
Dep. Doc. # 27-1 at 32:4-8).
Regardless, a warrant based on an affidavit deliberately
or recklessly omitting material information is invalid “only
if that information would have destroyed probable cause.”
City of Fairburn, 2017 WL 603840, at *8. If the supposedly
recklessly

omitted

information

was

whether

the

mortgage

lending process was actually underway, then the omission was
not material. The inclusion of the answer would not have
destroyed probable cause. See Madiwale, 117 F.3d at 1327
(“[E]ven intentional or reckless omissions will invalidate a
warrant only if inclusion of the omitted facts would have
prevented a finding of probable cause.” (citation omitted)).
If Horvath had investigated further, he would have reported
in his affidavit that the Jernigans had applied for a mortgage
within the five-day period specified by the sales contract,
and thus the mortgage lending process was underway. (Jernigan
29

Dep. Doc. # 50-2 at 17:24-18:3). Indeed, Horvath’s probable
cause

affidavits

would

have

been

strengthened

—

not

undermined — if he had investigated this element more fully.
In a perfect world, Horvath would have verified that Mr.
Jernigan had applied for a mortgage before executing the
affidavit. “But perfection is not the standard by which his
conduct is judged. Nor is negligence, for that matter.” Smith,
506 F. App’x at 900 (citing Madiwale, 117 F.3d at 1327). The
Court cannot agree with the Shews that Horvath’s conclusion
about

the

Jernigans’

mortgage

application

based

on

the

contract’s five-day requirement was unreasonable. Nor can the
Court agree that Horvath’s statement in the affidavits — that
the Shews’ misstatement or omission “would be relied upon by
a mortgage lender,” (Doc. # 49-3; Doc. # 49-4) — was made
with

reckless

disregard

for

the

truth.

Thus,

Horvath’s

failure to confirm that the mortgage lending process was
underway before executing the probable cause affidavits does
not undermine the existence of arguable probable cause.
2.
The

“Profited Greatly”

Shews

argue

Horvath

either

intentionally

or

recklessly made a misstatement in his affidavits when he
wrote: “the defendant profited greatly from the insurance
pay-out.” (Doc. # 49 at 14). At the time of the affidavits,
30

Horvath did not know how much of the $240,000 settlement the
Shews ultimately received. (Horvath Dep. Doc. # 27-1 at at
35:4-11). According to the Shews, “[i]n order to make a sworn
statement that Mr. and Mrs. Shew profited greatly, Detective
Horvath would have to know what [they] obtained from the
settlement.” (Doc. # 49 at 14-15).
The Court disagrees. Horvath knew that the settlement
amount was $240,000 total. (Horvath Dep. Doc. # 27-1 at 4-6;
Doc. # 49-3 at 1). And, as stated in the affidavit and
uncontested by the Shews, Horvath was aware that the Shews’
mortgage was paid off soon after they settled their lawsuit
for $240,000. (Doc. # 49-3 at 1). A reasonable officer could
conclude that a significant portion of the settlement won in
the Shews’ lawsuit was used to pay off their mortgage. Horvath
did not need to investigate the particulars of the Shews’ fee
arrangement with their attorney and adjuster to reasonably
conclude that the Shews greatly profited from a $240,000
settlement agreement.
And, to the extent the Shews may contest they in fact
greatly profited from the settlement, “the Fourth Amendment
does not require that statements in a warrant application be
‘objectively accurate,’ [but] the averments must at least ‘be
“truthful” in the sense that the information put forth is
31

believed or appropriately accepted by the affiant as true.’”
Thornton v. City of Tampa, No. 8:09-cv-00041-JDW-EAJ, 2010 WL
427737, at *5 (M.D. Fla. Feb. 3, 2010)(quoting Holmes, 321
F.3d at 1083). Taking the facts in the light most favorable
to the Shews, a reasonable office could have believed that
the Shews greatly profited from the $240,000 settlement.
3.
The

“Confirmed Sinkhole Damage”

Shews

argue

Horvath

falsely

stated

there

was

“confirmed sinkhole damage” to their property. (Doc. # 49 at
13-14). They insist the existence of a sinkhole was never
confirmed as experts disagreed over whether there was a
sinkhole

and

settlement

Farm

Bureau

agreement.

admitted

According

no
to

liability
the

in

Shews,

the
“[a]

reasonable, well-trained officer would know of the need to
further investigate whether the sinkhole actually existed and
would

not

have

discounted

the

majority

opinions

of

the

experts.” (Id. at 14).
As an initial matter, the Shews are incorrect that the
majority

of

experts

sinkhole

on

the

ultimately

property.

concluded

B.A.S.I.C.’s

there
report

was

no

finding

sinkhole damage, which was prepared on the Shews’ behalf no
less,

was

later

approved

and

adopted

by

Universal

Engineering. (Doc. # 49-3 at 1; Doc. # 50-6). In approving
32

B.A.S.I.C.’s

report,

Universal

Engineering

reversed

its

initial determination that the structural damage was caused
by clay settlement rather than a sinkhole. The Shews do not
dispute that Universal Engineering approved of B.A.S.I.C.’s
findings. Thus, even taking the facts in the light most
favorable to the Shews, the majority of engineering and
geological experts agreed there was a sinkhole on the Shews’
property.
Additionally,

the

document

filed

with

the

Hernando

County Clerk “confirm[ed] and certifie[d] sinkhole activity”
at the Shews’ home. (Doc. # 50-6). The Court disagrees that
Horvath acted in reckless disregard for the truth when he
stated there was “confirmed sinkhole damage” on the Shews’
property, in light of the expert reports and the document
“confirm[ing] and certif[ying] sinkhole activity.” (Id.).
4.

“Readily Observable Facts”

Next, the Shews argue a reasonable officer would not
have executed a probable cause affidavit for their arrest
without personally visiting their home to determine whether
the damage caused by the sinkhole was readily observable. The
sales contract states that the Shews had a duty to disclose
only damage that was not readily observable. (Doc. # 34-5 at
12). So, according to the Shews, if the damage was readily
33

observable, no probable cause could have existed for their
arrest. (Doc. # 49 at 13).
Horvath never went to the Shews’ home to inspect whether
the sinkhole and resulting structural damage were “readily
observable,” and did not know personally if the damage was
readily observable. (Horvath Dep. Doc. # 27-1 at 25:13-26:6).
Instead,

he

reviewed

the

engineering

reports

in

his

possession regarding the sinkhole and damage to the Shews’
home, which indicated there were cracks in the walls when the
reports were made in 2009 and 2010. (Id. at 26:7-14).
But, Mr. Shew also acknowledged in his interview with
Horvath that “the only repairs were done by him, which was
patching cracks in the drywall.” (Id. at 18:15-18). The
Jernigans, who both toured the home, did not report seeing
any cracks in the walls, or other signs of structural damage.
(Doc. # 49-5; Doc. # 49-6). And Mr. Jernigan stated Mr. Shew
mentioned only a light fixture’s exposed wiring that had been
fixed when Mr. Jernigan inquired about problems with the
house. (Doc. # 49-5 at 1).
Thus, a reasonable officer in Horvath’s position could
have concluded the cracks in the walls caused by the sinkhole,
which

were

reported

in

the

engineering

reports,

were

subsequently patched by Mr. Shew. And, while those cracks
34

were patched with dry wall, an officer could have concluded
the

Shews

did

not

rectify

the

underlying

cause

of

the

structural damage. To be sure, Mr. Shew admitted during his
interview with Horvath that “no sinkhole remediation process
ever occurred on the property.” (Horvath Dep. Doc. # 27-1 at
18:15-16). Thus, a reasonable officer in Horvath’s position
could have believed evidence of the damage — the cracks caused
by the sinkhole — was no longer “readily observable,” but
that the sinkhole and resultant damage remained.
5.

“Coordinated Scheme” and “Fully Involved”

Finally, the Shews argue Horvath’s investigation did not
support that the Shews had acted with the intent required by
the mortgage fraud statute. They contend Horvath had no basis
for his statement in the affidavits that Mrs. Shew acted in
concert with Mr. Shew “in a coordinated scheme,” because Mrs.
Shew told Horvath that Mr. Shew handled all matters related
to the lawsuit against Farm Bureau. (Horvath Dep. Doc. # 271 at 20:11-21:3). Additionally, in her deposition, Mrs. Shew
asserts Mr. Shew also handled all aspects of their home’s
sale. (F. Shew Dep. Doc. # 49-7 at 84:20-85:1; 85:4-5).
Horvath was not required to credit Mrs. Shew’s statement
that she was unaware of the basis of the lawsuit against Farm
Bureau. See Rodriguez v. Farrell, 294 F.3d 1276, 1278 (11th
35

Cir. 2002)(stating that “a police officer need not credit
everything a suspect tells him” (citing Marx, 905 F.2d at
1507 n.6)). And, the Shews’ real estate agent, Ms. Sickler,
“confirmed that [Mrs. Shew] was involved in the sales process,
but [Mr. Shew] had the say-so because she still works and he
is retired.” (Horvath Dep. Doc. # 27-1 at 23:20-22).
The Shews also contend Horvath did not have a reasonable
basis for asserting they were aware of the sinkhole’s presence
and thus he could not reasonably conclude they intentionally
failed to disclose the sinkhole. Along with stating Mr. Shew
handled the lawsuit, Mrs. Shew told Horvath she believed the
lawsuit was for Farm Bureau’s bad faith. (Id. at 20:14-18).
Mr. Shew also thought the lawsuit against Farm Bureau was
based on the non-renewal of their home owners’ policy, which
Mr. Shew had explained to Horvath. (Id. at 17:2-11). Moreover,
the Shews claim they never read the lawsuit, settlement
agreement, or B.A.S.I.C.’s report. (F. Shew Dep. Doc. # 49-7
at 62:21-25; 104:12-17; R. Shew Dep. Doc. # 50-3 at 56:8-9;
72:8-22).
But,

the

Shews’

statements

to

Horvath

in

their

interviews that they were unaware of sinkhole activity and
signed various legal documents without reading them do not
undermine the existence of arguable probable cause. Horvath
36

acknowledged in his probable cause affidavits that Mr. and
Mrs. Shew denied knowledge of the sinkhole. (Doc. # 49-3 at
2; Doc. # 49-4 at 2). The judge issued the arrest warrants
anyway.

While

Horvath

reported

the

Shews’

claims

of

ignorance, he was not required to believe them in light of
the other evidence available to him. See Rodriguez, 294 F.3d
at 1278; see also Beauchamp v. City of Noblesville, Ind., 320
F.3d 733, 744 (7th Cir. 2003)(“[C]riminal suspects frequently
protest their innocence, and a suspect’s denial of guilt
generally is not enough to trigger a duty to investigate in
the face of a reasonably believable witness and readily
observable events.”).
Here, Horvath had evidence not only that the Shews knew
there was a sinkhole on their property (the Shews’ complaint
against

Farm

Bureau

alleging

the

existence

of

sinkhole

damage, their subsequently signed settlement for the policy’s
limits,

and

B.A.S.I.C.’s

report

concluding

there

was

a

sinkhole), but also that the Shews intentionally failed to
disclose such information (the signed sales contract with its
disclosure

clause).

position

could

have

although

they

signed

A

reasonable

disbelieved
all

the

37

officer

the
legal

Shews’

in

Horvath’s

claims

documents

and

that,
had

B.A.S.I.C.’s report in their possession, they were unaware of
those documents’ contents.
Equally
Horvath

unpersuasive

lacked

probable

is

the

cause

Shews’
to

contention

believe

the

that
Shews

intentionally failed to disclose there was a sinkhole because
there was disagreement among experts about the cause of the
property’s structural damage. As the Court understands it,
their argument goes like this: assuming the Shews had read
and were aware of the contents of the various expert reports,
a reasonable officer in Horvath’s position still could not
conclude that the Shews knowingly failed to disclose the
existence of a sinkhole because they themselves could not
know there was a sinkhole in the face of conflicting evidence.
But, again, Horvath explained in the probable cause
affidavits the history of the expert sinkhole investigation.
The judge issued the warrants nonetheless. Cf. Paullin v.
City of Loxley, 171 F. App’x 773, 777 (11th Cir. 2006)(“[W]e
reject Paullin’s argument that Mitchum’s knowledge of the
existence of a lien should have signaled to Mitchum that he
was faced with a civil dispute, rather than a criminal matter.
Magistrate Hicks also knew of the existence of a lien but
still issued the arrest warrant.”). Horvath disclosed that
HSA Engineering

and

Scientists
38

and

Universal Engineering

Sciences had initially determined there was no sinkhole on
the Shews’ property. (Doc. # 49-3 at 1). But, after the Shews
initiated a lawsuit against Farm Bureau, arguing that there
was a sinkhole, they hired B.A.S.I.C., which issued a report
finding there was a sinkhole. After reviewing B.A.S.I.C.’s
report, Universal Engineering Sciences changed its findings
and agreed with B.A.S.I.C. that there was sinkhole damage to
the Shews’ home. (Id.).
The Shews do not contest Horvath’s outline of the expert
reports, nor do they point to other expert information that
was

omitted

from

the

affidavit.

And,

to

the

extent

a

disagreement between experts could cause the Shews to doubt
there

was

a

sinkhole,

a

reasonable

officer

could

still

conclude that the Shews were being dishonest about their
knowledge. Mr. Shew told Horvath he “had no idea” there was
a sinkhole on his property. (Horvath Dep. Doc. # 27-1 at
15:23-24; 16:21-22); see also (Doc. # 49-3 at 2).
But, if he was aware of the conflicting reports, then
Mr. Shew was on notice there may be a sinkhole on his
property. Mr. Shew’s knowledge that some experts reported a
sinkhole on the property is incompatible with his claim that
he had “no idea” there was a sinkhole. Other contradictions
in Mr. Shew’s statement to Horvath could lead a reasonable
39

officer to doubt the Shews’ honesty about the extent of their
knowledge. As Horvath described in his deposition:
[Mr. Shew] made another statement that made no
sense based on his self-proclaimed ignorance. He
stated that prior to listing the home on the market,
he checked with the Hernando County Clerk and
property appraiser to see if any official reports
had been on file against his home and property
regarding confirmed sinkhole activity. He claimed
to have found nothing. However, I discovered an
official document that was filed by Farm Bureau
Insurance stating just that, dated October 6, 2010,
and recorded on October 14, 2010.
(Horvath Dep. Doc. # 27-1 at 18:4-12). Knowing what Horvath
knew, an officer could have reasonably concluded Mr. Shew was
being

dishonest

concluded

about

from

such

the

extent

dishonesty

of

his

that

knowledge,
the

Shews

and
had

intentionally lied about the sinkhole to the Jernigans.
IV.

Conclusion
While

the

Court

understands

the

embarrassment

and

frustration felt by the Shews, “[t]he Constitution does not
guarantee that only the guilty will be arrested.” Baker v.
McCollan, 443 U.S. 137, 145 (1979). And, while they are
dissatisfied

with

Horvath’s

investigation,

that

dissatisfaction does not alter the Court’s analysis. Cf.
Dickson v. Creel, No. 4:16CV81-RH/CAS, 2016 WL 6824385, at *2
(N.D.

Fla.

Nov.

17,

2016)(“Mr.

Dickson

criticizes

the

officers’ performance, but the controlling issue is simply

40

whether there was probable cause to believe Mr. Dickson
participated in the thefts.”). Taking the evidence in the
light most favorable to the Shews, Horvath had at least
arguable probable cause for their arrest and is entitled to
qualified immunity. Horvath’s Motion for Summary Judgment is
granted, and the Shews’ Motion for Partial Summary Judgment
is denied.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant William Horvath’s Motion for Summary Judgment
(Doc. # 50) is GRANTED.

(2)

Plaintiffs Rickey and Frances Shew’s Motion for Partial
Summary Judgment (Doc. # 49) is DENIED.

(3)

The Clerk is directed to enter judgment in favor of
Defendant William Horvath, and thereafter

CLOSE THE

CASE.
DONE and ORDERED in Chambers, in Tampa, Florida, this
19th day of April, 2017.

41