Caruso v. Local Union No. 690 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, No. 28
| Court | Court of Appeals of Washington |
| Writing for the Court | GREEN; McINTURFF, C.J., and ROE |
| Citation | 33 Wn.App. 201,653 P.2d 638 |
| Docket Number | No. 28,No. 4489-III-1 |
| Decision Date | 04 November 1982 |
| Parties | , 111 L.R.R.M. (BNA) 2927 Robert E. CARUSO, Respondent, v. LOCAL UNION NO. 690 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Appellant, and Joint Councilof International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendant. |
Page 201
v.
LOCAL UNION NO. 690 OF INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, Appellant,
and
Joint Council No. 28 of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Defendant.
Division 3, Panel 4.
Rehearing Denied Dec. 17, 1982.
Page 203
[653 P.2d 640] Thomas K. Cassidy, Hafer, Cassidy & Price, Seattle, for appellant.
Richard E. Hayes, MacGillivray & Jones, Spokane, for defendant.
Joseph J. Ganz, Vovos, Voermans & Ganz, Spokane, for respondent.
GREEN, Judge.
Local Union 690 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen[653 P.2d 641] and Helpers of America 1 appeals a judgment entered upon a jury verdict awarding Robert Caruso damages for interference with a business expectancy and defamation.
The issues presented concern the court's 1) denying Local 690's motions to dismiss; 2) admitting certain evidence relating to damages; 3) allowing amendment of the complaint to add the defamation claim; and 4) giving and refusing to give certain instructions. We affirm.
Taken in a light most favorable to Mr. Caruso, the evidence shows: From 1970 to 1978, Mr. Caruso owned and operated a business under the names "Linoleum & Carpet City" and "Carpet City" in Spokane. Mr. Caruso also owned a parking lot three blocks from this business. Periodically he received complaints that delivery vans were blocking access to this lot.
On the morning of October 26, 1973, when he attempted to park his car in the lot, he discovered a beer truck and TV delivery van were blocking the entrance. After unsuccessfully trying to locate the drivers, he noticed the truck
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was unlocked and the keys were in the ignition. Because there was a risk the truck might be stolen, he removed the keys, secured the truck and went to his place of business. He telephoned the owner, whose name and telephone number were on the side of the truck, and asked him to pick up the keys and remove the truck.Shortly thereafter, Mr. Caruso stated he received a telephone call from Mr. Contos, the truck driver, who "proceeded to call [him] every dirty name in the book, ... [and told him] how much trouble [he] was in ..." He hung up on Mr. Contos, telephoned a towing company to remove both vehicles, and proceeded back to the lot. Mr. Contos and the driver of the TV van were there. The driver of the van settled his share of the tow truck costs with the towing company. However, Mr. Contos refused to do so. He shook his fist at Mr. Caruso and threatened to assault him. He told Mr. Caruso he had just reported him to the Teamsters Union, Mr. Caruso "was going to lose tens of thousands of dollars and that the Teamsters Union would break [him]." After three policemen arrived, Mr. Caruso gave the keys to the officers who ordered the truck be towed into an adjacent alley.
On about November 11, Mr. Caruso and his employees began receiving anonymous telephone calls from people indicating they would never buy anything from Mr. Caruso's business because he "took keys out of Teamsters' trucks and harassed Teamsters and had their vehicles hauled away ..." Subsequent investigation revealed that on November 9 the following article had been published on the front page and twice on the inside pages of the Washington Teamster:
Don't [P]atronize Carpet City in Spokane
This is to notify all members of Teamsters Union, Local 690 and all other Teamster and Laboring people in the State of Washington that when traveling to and from the Expo City--"please do not patronize Carpet City Carpet & Linoleum Shop at West 518 Main Avenue"--Spokane, Washington," [sic ] (Expo City). The
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reasons for this request are: This Company is continuously harassing the Teamsters and other laboring people who may at some time use the parking facility at this place of business to make a delivery because of the congested traffic problems in Expo City since construction is going on mainly in that area. Someone from this Company removes the keys of such vehicles, have [sic ] the equipment impounded and create [sic ] many problems for these employees and their employers including the cost of impoundment to those effected. [sic ]This company will not cooperate with these drivers when told that they will move their equipment and apologize for parking in this area--their equipment is still impounded!
[653 P.2d 642] We request that all Laboring people--Teamsters or otherwise--do not [p]atronize Carpet City Carpet & Linoleum Shop.
Thanks kindly for your Support.
Teamsters Union, Local 690
A similar article was published again on November 30. It emphasized the request did not apply to The Linoleum Shop, Inc., North 227 Howard Street, but only to Linoleum & Carpet City at West 518 Main Avenue. These publications were distributed to several universities and libraries, members of a charitable organization and retired as well as active union members.
Immediately after the articles were published, Mr. Caruso's sales dropped dramatically. Several times, without success, he attempted to contact Mr. Olds, Local 690's representative who wrote the articles. In May 1974 he relocated his business with the hope of minimizing his losses. Nevertheless, he continued to receive belligerent, harassing telephone calls.
On December 17, 1974, Mr. Caruso commenced this action seeking damages for business interference. On April 30, 1980, he amended his complaint to add a claim for defamation. Following a jury trial, he was awarded $102,000 damages.
Page 206
CERTIFICATE OF ASSUMED BUSINESS NAMELocal 690 contends the court erred when it refused to dismiss this case because Mr. Caruso failed to prove he filed a certificate of assumed business name with the Department of Licensing. RCW 19.80.010.
RCW 19.80.040 provides:
No person or persons carrying on, conducting or transacting business as aforesaid, or having an interest therein, shall hereafter be entitled to maintain any suit in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in RCW 19.80.010, and failure to file such certificate shall be prima facie evidence of fraud in securing credit.
We find no error. The purpose of this statute is to provide notice to those engaging in a transaction with a business operating under an assumed name of the names of the persons conducting the business. Laliberte v. Wilkins, 30 Wash.App. 782, 784, 638 P.2d 596 (1981). In other states, such statutes, being in derogation of the common law, have been limited to the purpose for which they are intended; consequently, they have not been applied to tort actions. 2
We adopt the view expressed in those states considering this question. Since the alleged wrongful acts in this case are not based on a business transaction contemplated by RCW 19.80.010, the court properly denied the motion to dismiss for failure to prove the filing of a certificate of assumed business name.
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INTERFERENCE WITH A BUSINESS EXPECTANCYLocal 690 contends Mr. Caruso failed to establish the elements of his claim of interference with a business expectancy. 3 It is argued there is no evidence Local 690 knew of or interfered with any specific [653 P.2d 643] contractual relationship with an identifiable person; hence proof of lost profits was too speculative to show Local 690 caused the loss. We disagree. A jury question was presented on each of these elements.
The tort of interference with a business expectancy protects not only the opportunity to consummate but also to obtain business relationships. W. Prosser, Torts § 130, at 949 (4th ed. 1971); Restatement (Second) of Torts § 766B (1979). Proof of a specific contract is not required. Cherberg v. Peoples Nat'l Bank, 88 Wash.2d 595, 602, 564 P.2d 1137 (1977). It is sufficient if the evidence reveals that the alleged interferor knew or should have known of the business opportunity or expectancy. Edwards v. Anaconda Co., 115 Ariz. 313, 565 P.2d 190, 192-93 (1977). See Topline Equip., Inc. v. Stan Witty Land, Inc., 31 Wash.App. 86, 93, 639 P.2d 825 (1982). Our courts, as well as those in other states, have allowed recovery where a defendant's acts destroy a plaintiff's opportunity to obtain prospective customers. 4 While the plaintiff must show that future business
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opportunities and profits are a reasonable expectation and not merely wishful thinking, Behrend v. Bell Telephone Co., 242 Pa.Super. 47, 363 A.2d 1152 (1976); Seidell v. Taylor, 86 Wash. 645, 151 P. 41 (1915), certainty of proof is not required. Seidell v. Taylor, supra; National Merchandising Corp. v. Leyden, 370 Mass. 425, 348 N.E.2d 771 (1976). The loss may be determined from"a background of business experience on the basis of which it is possible to estimate with some fair amount of success both the value of what has been lost and the likelihood that the plaintiff would have received it if the defendant had not interfered."
(Footnote omitted.) Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 14 (3d Cir.1963); Edwards v. Anaconda Co., supra 565 P.2d at 193; W. Prosser, Torts § 130, at 950 (4th ed. 1971).
Here, the "Don't Patronize" articles were clearly intended to induce potential customers not to patronize Mr. Caruso's business. Mr. Caruso testified he relied on walk-in customers for much of his income, and those sales decreased sharply after the articles were published. Additionally, extensive expert testimony was introduced analyzing the history of Mr. Caruso's business, his management, retail and wholesale sales in the area, and the general economy. The experts testified that until publication of the article, Mr. Caruso experienced a rapid increase in gross profits each year; but after publication, sales...
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...acts destroy a plaintiff’s opportunity to obtain prospective customers." Caruso v. Local Union No. 690, 33 Wash. App. 201, 207, 653 P.2d 638 (1982), 7 Wash.App.2d 769 rev’d on other grounds, 100 Wash.2d 343, 670 P.2d 240 (1983). Washington courts require a plaintiff to show only that its "f......
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...appellant a trial de novo on appeal, as provided in RCW 35.20.070, which was superseded by the RALJ, effective January 1, 1981. Page 86 [653 P.2d 638] JCrR 2.06(a) declares that if two or more complaints are filed against the same defendant for the same offense, the court shall order the co......
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...acts destroy a plaintiff’s opportunity to obtain prospective customers." Caruso v. Local Union No. 690, 33 Wash. App. 201, 207, 653 P.2d 638 (1982), 7 Wash.App.2d 769 rev’d on other grounds, 100 Wash.2d 343, 670 P.2d 240 (1983). Washington courts require a plaintiff to show only that its "f......
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...appellant a trial de novo on appeal, as provided in RCW 35.20.070, which was superseded by the RALJ, effective January 1, 1981. Page 86 [653 P.2d 638] JCrR 2.06(a) declares that if two or more complaints are filed against the same defendant for the same offense, the court shall order the co......