Lavis Plumbing Services, Inc. v. Johnson, 86-2307
| Decision Date | 27 October 1987 |
| Docket Number | No. 86-2307,86-2307 |
| Citation | 12 Fla. L. Weekly 2490,515 So.2d 296 |
| Parties | 12 Fla. L. Weekly 2490 LAVIS PLUMBING SERVICES, INC., Appellant, v. Claude T. JOHNSON and Reba Johnson, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Stanley Jay Bartel, Miami, for appellant.
Howard T. Sutter, Coral Gables, Franklin J. Siegel, Miami, for appellees.
Before HENDRY, HUBBART and JORGENSON, JJ.
Lavis Plumbing Services appeal a final judgment which found against plaintiff on the complaint and counterclaim. The jury awarded the defendants compensatory damages after finding that Lavis had violated sections 777.011, 777.04, and 843.08 OF THE FLORIDA STATUTES1. While we respectfully honor the findings of the circuit court and affirm the denial of plaintiff's claim, we reverse the counterclaim recovery. The ultimate facts upon which the counterclaim was based did not support a proper claim for which relief could be granted.
At the death of its founder, Lavis Plumbing Services, a Florida corporation, was acquired by Milton S. Jennings. The company's primary operations involved digging wells and installing sprinkler systems as well as general plumbing repairs and installations. In 1978 Lavis promoted a long-time employee, Claude T. Johnson, to general manager. The promotion included membership on the board of directors and a vice presidency.
Although Johnson was relied upon to run the company in Jennings' absence, he was terminated from his position with Lavis in July 1982. The company filed suit against him alleging fraud, misappropriation and conversion of Lavis property. The complaint further alleged that Johnson, through self-dealing contracts, secretly profited from contracts with his employer. Lavis sought money damages in addition to the imposition of a constructive trust upon the house recently constructed by the Johnsons in Goulds, Florida.
During pendency of the suit, the Johnson home was burglarized. As publicized in the Miami Herald, two boxes of records, $5,000 in cash and a large chandelier were taken. It was this incident which allegedly prevented Johnson from substantiating his personal expenditures for the construction of the house in Goulds.
At Lavis, Johnson's temporary replacement, John Pennell, attempted to gain a copy of the burglary report to verify the loss of records. Lacking a case number, his efforts were thwarted until a call was made to the Johnson home. Identifying himself as a police officer working on the burglary investigation, Pennell asked the teenage daughter who answered to have Mrs. Johnson return his call. He left a Lavis business number. When Mrs. Johnson called that number, Pennell answered and once again identified himself as a police officer who needed the burglary report case number in order to question two suspects taken into custody. Complying with his request, Mrs. Johnson gave him the number and asked that the Johnsons be kept apprised of his progress. When they did not hear from the "officer", Mrs. Johnson again called the number formerly given. This time it was answered, "Lavis-Pennell."
Alleging that this misrepresentation of a police officer by a Lavis employee, following the traumatic invasion of their home by burglars, caused the entire family to be in fear for their safety, the Johnsons filed a counterclaim. Lavis allegedly violated sections 777.011, 777.04 and 843.08, Florida Statutes, which caused the Johnsons to suffer fear, emotional distress and extreme mental anguish. Claude and Reba Johnson sought monetary relief for their injuries.
At trial the jury found that Lavis, by and through its employees, had falsely personated a police officer, (section 843.08), as well as solicited, (section 777.04), aided, abetted, counseled, hired, or otherwise procured, (section 777.011), said criminal offense to be committed. For the resulting emotional injuries suffered, the jury awarded Claude T. Johnson $7,000 and Reba Johnson $3,500. This appeal by Lavis followed.
By the instructions given the jurors, if they found that an employee of Lavis had "pretended to be a police officer ... to the detriment of the Johnsons" and if they found that this activity was the "cause" of "any injury or damage to the Johnsons," the jury was directed to enter an affirmative verdict on the counterclaim for Claude and/or Reba Johnson.
In order to recover civilly for a cause of action founded in the violation of a penal statute, the injury sued for must be shown to have been proximately caused by the alleged misconduct. Gilman v. Central Vermont R. Co., 93 Vt. 340, 107 A. 122 (1919). Here, where communications with the "officer" were separated in person and time from the alleged injuries, it cannot be said that the injuries were proximately caused by the personation.
Indeed, before any proper and viable cause of action for intentional infliction of mental distress arises in Florida, there must first of all be an independent tort, a factor absent here. LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964); Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 636 (Fla. 5th DCA 1983).
The award recovered by the Johnsons was also erroneous when the impact rule is properly applied to the facts, for in order to maintain an action, a person who has suffered definite and objective physical injury as the result of emotional stress induced by another's negligent conduct must have experienced a physical impact.
The impact rule requirement of a significant discernible physical injury was reinforced by the Florida Supreme Court in Gilliam v. Stewart, 291 So.2d 593 (Fla.1974) () and, in Brown v. Cadillac Motor Car Division, 468 So.2d 903 (Fla.1985) (...
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