Rickey Shew v. William Horvath , 712 F. App'x 949 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12023
Non-Argument Calendar
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D.C. Docket No. 8:16-cv-00766-VMC-JSS
RICKEY SHEW
FRANCES SHEW,
Plaintiff-Appellants,
versus
WILLIAM HORVATH,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 4, 2017)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal requires us to decide whether the district court erred when it
granted summary judgment in favor of William Horvath and against Rickey Shew
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and Frances Shew’s complaint that Horvath violated the Shews’ Fourth
Amendment right to be free from unreasonable searches and seizures. See 42
U.S.C. § 1983. We affirm.
I. BACKGROUND
In November of 2002, the Shews purchased a home in Hernando County,
Florida. In 2008, Frances noticed cracks in the walls of the house, and the Shews
contacted their insurer, Florida Farm Bureau. Experts employed by the Farm
Bureau initially opined that a sinkhole did not cause the cracks. Farm Bureau then
declined to renew the Shews’ insurance policy in May of 2009. The Shews filed
suit against Farm Bureau for its failure to cover damage caused by a sinkhole, and
the Shews hired Bay Area Sinkhole Investigation and Civil Engineering, who
concluded that a sinkhole caused the damage to the home. After reviewing this
report, one of the experts employed earlier by Farm Bureau agreed with Bay Area.
The Shews also received a copy of the Bay Area report, although they assert that
they did not read the report.
The Shews and Farm Bureau settled the claim on August 16, 2010. The
Shews received $240,000, and both of the Shews signed an agreement stating that
the “insured property suffered a covered loss due to sinkhole activity on or around
December 15, 2008.” Farm Bureau then filed with the Hernando County Clerk a
document that stated, “Pursuant to Florida Statute [section] 627.7073(2)(a), please
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find the enclosed land subsidence report which confirms and certifies sinkhole
activity at the residence of Rick and Fran Shew . . . .” County records do not
contain evidence of sinkhole remediation.
On June 16, 2015, Rickey and Frances signed a contract to sell the house to
Christopher Jernigan for $229,000. The contract contained a clause that required
the purchaser to apply for a mortgage within five days of execution. The contract
was contingent on Jernigan “obtaining a written loan commitment” within thirty
days. And the contract included a disclosure clause that stated that “[s]eller knows
of no facts materially affecting the value of the Real Property which are not readily
observable and which have not been disclosed to Buyer.” Jernigan only later
learned of the sinkhole. He backed out of the contract and reported the alleged
misrepresentation to the Hernando County Sheriff’s Office.
Horvath, a detective at the Hernando County Sheriff’s Office, conducted an
investigation. He communicated with Jernigan, who informed Horvath that
Jernigan had asked Rickey “about any problems the home may have had,” and that
“the only deficiency [Rickey] brought to [Jernigan’s] attention” was an exposed
wire that had since been repaired. Horvath then obtained Jernigan’s records, a copy
of the sales contract, a copy of the Shews’ complaint against Farm Bureau, the
settlement agreement, the sinkhole report filed with the County Clerk, and two of
the expert reports.
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Horvath also interviewed the Shews. Frances denied that the house had a
sinkhole and told Horvath that Rickey had handled both the dispute with Farm
Bureau and the attempted sale to Jernigan. According to Horvath, Rickey also
denied that the house had a sinkhole issue, but “admitted that he filed an insurance
claim with Farm Bureau due to structural damage in his house” and that an
inspector had concluded that a sinkhole had caused the damage. Rickey also
“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.” Finally,
Rickey conceded 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.”
Horvath also interviewed Catherine Sickler, the Shews’ realtor in the sale to
Jernigan. According to Horvath’s report, Sickler told him that that the property was
“a sinkhole house” and Sickler said that “Frances was involved in the sales
process.”
Horvath did not visit the property during his investigation, and he never
personally determined whether the alleged sinkhole and structural damage were
“readily observable.” He instead relied on the engineering reports and witness
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statements. Horvath also did not confirm whether a mortgage lender actually relied
on the Shews’ representation.
On October 12, 2015, Horvath executed a pair of affidavits to obtain arrest
warrants for the Shews. The affidavits asserted that the Shews had “[c]ommit[ted]
the offense of Mortgage Fraud . . . by making [a] material misstatement,
misrepresentation, and omission that would be relied upon by a mortgage lender
involving the contracted sale . . . .” Florida defines mortgage fraud as follows:
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 . . . .
Fla. Stat. § 817.545(2)(a). The affidavits also explained Horvath’s evidence and
conclusions.
A state attorney approved the affidavits, and Horvath presented them to a
judge. The judge issued arrest warrants for the Shews, and the Shews turned
themselves in. The State Attorney later elected not to prosecute the case.
The Shews filed a lawsuit against Horvath in his individual capacity under
section 1983 of title 42 of the United States Code. The Shews alleged that Horvath
violated their Fourth Amendment rights when he “completed a probable cause
affidavit in support of a warrant for [their] arrest . . . [that] was so lacking in
establishing probable cause that [Horvath] knew or should have known that there
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was no probable cause to support an arrest of [the Shews].” The district court
granted summary judgment in favor of Horvath on the basis of qualified immunity.
II. STANDARD OF REVIEW
“We review de novo the district court’s disposition of a summary judgment
motion based on qualified immunity, resolving all issues of material fact in favor
of Plaintiffs and then answering the legal question of whether Defendants are
entitled to qualified immunity under that version of the facts.” West v. Tillman, 496
F.3d 1321, 1326 (11th Cir. 2007). Summary judgment is appropriate when there
are no genuine issues of material fact. Fed. R. Civ. P. 56.
III. DISCUSSION
The Shews contend that Horvath is liable for the “unreasonable seizure and
malicious prosecution” of the Shews because Horvath lacked probable cause when
he completed his affidavit, but we disagree. Horvath is entitled to qualified
immunity because he had probable cause to believe that the Shews had committed
mortgage fraud as defined by the Florida statute. Officers “enjoy a qualified
immunity from suit that protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Croom v.
Balkwill, 645 F.3d 1240, 1245 (11th Cir. 2011) (internal quotation marks and
citation omitted). We have explained that officers are entitled to qualified
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immunity against claims of false arrest if the officer had “arguable probable cause”
to arrest the suspect. See Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999)
(“An arrest without probable cause is unconstitutional, but officers who make such
an arrest are entitled to qualified immunity if there was arguable probable cause for
the arrest.”). We have also held that “probable cause bars [a section] 1983
malicious prosecution claim.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).
We assess probable cause “based on the information known to defendants at the
pertinent times.” Marx v. Gumbinner, 905 F.2d 1503, 1507 (11th Cir. 1990).
Horvath’s investigation gave him probable cause to believe that the Shews
had committed mortgage fraud. He had reason to think that both of the Shews were
culpable in the light of Sickler’s statement that “Frances was involved in the sales
process.” And Horvath could reasonably conclude that the Shews acted with intent
to defraud. Horvath discovered that Jernigan had asked “about any problems the
home may have had,” and that “the only deficiency [Rickey] brought to
[Jernigan’s] attention” was an exposed wire. Rickey also stated that he had
“patch[ed] cracks in the drywall” and checked public records for sinkhole activity
before listing the house, even though Rickey possessed an expert report that
identified sinkhole activity. A reasonable officer could infer that the Shews had
concealed the sinkhole damage and intended to deceive prospective buyers.
Horvath could reasonably conclude that a failure to mention a sinkhole that was the
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subject of a $240,000 settlement was a “material . . . omission” that “[would] be
relied on by a mortgage lender, borrower, or any other person or entity involved in
the mortgage lending process.” Fla. Stat. § 817.545(2)(a). Indeed, Jernigan backed
out of the contract after learning of the sinkhole. Finally, Horvath had reason to
believe that the nondisclosure occurred during the mortgage process. Although he
did not personally confirm that Jernigan was seeking a mortgage at the time of the
relevant statements, the contract required the purchaser to apply for a mortgage
within five days of execution and was contingent on Jernigan “obtaining a written
loan commitment” within thirty days. This pair of terms would allow a reasonable
officer to conclude that Jernigan was actively seeking a mortgage.
Although the Shews contend that Horvath should have conducted a more
thorough investigation, officers need not “track down every lead” as long as they
do not ignore or withhold “relevant, exculpatory evidence of which [they are]
aware.” Kelly v. Curtis, 21 F.3d 1544, 1551 (11th Cir. 1994). Horvath’s
communications with interested parties and review of relevant documents gave
him probable cause to believe that the Shews had committed mortgage fraud. The
district court did not err when it granted summary judgment in favor of Horvath.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Horvath.
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