Meehan v. Michigan Bell Telephone Co.

• Decision Date: 15 March 1989
• Docket Number: Docket No. 94088
• Citation: 174 Mich.App. 538,436 N.W.2d 711
• Parties: Raymond William MEEHAN, Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation, Defendant-Appellant. 174 Mich.App. 538, 436 N.W.2d 711
• Court: Court of Appeal of Michigan — District of US

Page 711

436 N.W.2d 711

Raymond William MEEHAN, Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation Defendant-Appellant.

Docket No. 94088.

174 Mich.App. 538, 436 N.W.2d 711

Court of Appeals of Michigan.

Submitted Jan. 5, 1988.

Decided Feb. 6, 1989.

Released for Publication March 15, 1989.

[174 MICHAPP 540] Ronald R. Gold and Thomas C. Taylor, Southfield, for plaintiff-appellee.

Cross, Wrock, Miller & Vieson by W. Robert [174 MICHAPP 541] Chandler and Jesse C. Vivian and (Michael A. Holmes, of counsel), Detroit, for defendant-appellant.

Before MACKENZIE, P.J., and KELLY and BORRELLO, ^* JJ.

BORRELLO, Judge.

Following a jury trial which began on February 7, 1985, and ended March 14, 1985, plaintiff, Raymond William Meehan, was awarded $195,000 in his suit against defendant, Michigan Bell Telephone Company, for malicious prosecution and abuse of process. On April 26, 1985, the trial court entered judgment on the verdict tripling plaintiff's award pursuant to M.C.L. Sec. 600.2907; M.S.A. Sec. 27A.2907, for a total of $585,000, and adding the statutory twelve percent annual interest compounded from the date of filing the complaint. Defendant filed a motion for new trial or judgment notwithstanding the verdict, which the trial court denied. Defendant appeals as of right. We affirm.

Plaintiff, who was not, and never had been, an employee of defendant, was arrested on January 22, 1979, for allegedly receiving and concealing certain microfiche which contained the names and addresses of defendant's nonpublished customers. Plaintiff's defense was that the microfiche, or "white knights," were either discarded by defendant or made available by companies defendant hired to dispose of its out-of-date microfiche. The charges against plaintiff were dismissed because the microfiche found in plaintiff's home were copies and not originals of defendant's microfiche.

Plaintiff sued defendant for malicious prosecution and abuse of process, alleging that when defendant instigated his arrest it knew that the microfiche found in plaintiff's home were copies.

[174 MICHAPP 542] A Michigan Bell "white knight" is a three-volume directory reprint which contains all the information in the regular telephone directory, i.e., names, addresses, and telephone numbers of listed customers, plus the names and addresses of nonpublished customers, but not their telephone numbers. The white knights were transferred from paper to microfiche between 1975 and 1978. The microfiche "white knights," four-inch by six-inch negative-type films, which must be put into a viewer to be enlarged, contained the same information as the paper directories. White knights are used by credit offices. White knights bear a logo which reads: "Private property of Michigan Bell Telephone Company for their use only. Not to be reproduced or removed from company property."

A credit manager of a jewelry company testified that he had been in the credit collection business since 1947 and that defendant's white knights are one of the various directories used in the business to aid in finding people. The jewelry store credit manager knew of plaintiff's involvement with white knights going back to 1973 and that plaintiff had sold microfiche to others. The credit manager also testified that the logo was generally ignored in the trade and opined that the warning was merely directed to defendant's employees.

An internal audit dated November 7, 1978, indicated that security of related microfiche was very weak. Contracts for disposal of the related microfiche did not contain language specifying confidentiality of the records. In 1978, the microfiche with the actual nonpublished telephone numbers were destroyed in-house, but the directory reprint microfiche, i.e., the microfiche with only the names and addresses of the nonpublished customers, was placed in barrels at defendant's micrographic center, picked up by outside contractors, and taken to [174 MICHAPP 543] the city incinerator. Incinerator slips received at the end of the process indicated tonnage only and would not indicate whether a few packages of microfiche were not incinerated.

In December of 1978, defendant's investigator, Richard Selke, asked defendant's micrographic facility manager to meet with him and two individuals from the Oakland County Prosecutor's Office in order to determine whether certain microfiche belonged to defendant.

A first-generation microfiche is the first copy which is distributed within the company to, among others, the information operators. A copy, or second-generation, is made from raw stock which comes from the manufacturer with a white stripe on it. The microfiche that Selke had at the meeting was duplicated from a previous microfiche with white stripes. Defendant's micrographic facility representative knew this because the title, which was on the white stripe, was unreadable.

A representative of Bresser's Cross-Index Directory, another source used to locate people, testified that they had used white knights in their business since the 1960's. A number of people brought white knights to Bresser's and there was nothing secretive about buying them from vendors.

Plaintiff was a client of Bresser's. Plaintiff leased the Bresser's Cross-Index Directory and sold white knights to Bresser's. Bresser's never looked to see if there was a logo on white knights it purchased. The logo's presence would not have mattered, because white knight usage was so common.

Bresser's had ten or twelve sources from which it could purchase used microfiche. Bresser's first acquired white knights from a Yellow Pages salesman who brought them as a courtesy. Eventually, Bresser's was told that it had to procure the [174 MICHAPP 544] microfiche itself and was directed to the back of defendant's Bethune station, where the microfiche were in the trash. The Bresser's representative testified that he collected white knights from that location and also from a location in Southfield. In the middle of the day, he would walk in and ask where the white knights were located. Someone would direct him to a corridor. No one ever said he could not take them.

After plaintiff's arrest on January 22, 1979, defendant's head of corporate security, Larry York, still tried to find out if an employee was involved, which he admitted was defendant's "basic motivation from the beginning." York verified the accuracy of a transcript of a January 26, 1979, radio broadcast which stated:

"Well, my staff is working hand-in-hand with the staff of L. Brooks Patterson. As you know, charges have been filed. We have filed complaints against two men who have been arrested for receiving and concealing stolen property and, of course, the investigation is continuing by my staff and by Mr. Patterson's staff."

Because the microfiche seized from plaintiff and Glen Lasuita, who was arrested two months before plaintiff, contained the proprietary marking on them (the "logo"), it was concluded that they were stolen.

Plaintiff's twenty-five-year-old daughter testified that she was living at home on January 22, 1979, when three men came to the door with a legal document to search the house. Selke, who held the document, was accompanied by two police officers. The men primarily searched the bedroom which plaintiff used as an office. Selke came out of the bedroom with microfiche in his hand, said that that was what they were looking for and that they [174 MICHAPP 545] had found "stolen property from Michigan Bell." Selke told plaintiff's daughter and wife to summon plaintiff.

When plaintiff arrived home, he was arrested and taken away. Plaintiff's son testified that plaintiff was handcuffed and that it was defendant's employee, Richard Selke, who told the plaintiff that he was under arrest.

Selke admitted that he accompanied persons from the Oakland County Prosecutor's Office to the Rochester District Court to get a search warrant for plaintiff's home. He further admitted that he knew on January 22, 1979, when he went to identify the microfiche, that the microfiche in plaintiff's home was not defendant's property, but was only a copy. Selke testified that he had never told anyone that the microfiche was stolen. Selke testified that there were twenty-nine contacts with the prosecutor's office between November 15, 1978, and January 22, 1979, and additional contacts after January 22, 1979.

Mr. Bruce Leitman, plaintiff's attorney for the criminal charges, was allowed to testify. Leitman is an adjunct professor of law at Wayne State University Law School. Leitman testified that while he worked as an assistant for the Oakland County Prosecutor's Office he made literally hundreds of determinations as to whether warrants should be issued. Leitman further testified that the prosecutor's office continues to call him occasionally to ask his opinion about whether certain warrants should be recommended.

Leitman was allowed to give an opinion that plaintiff's arrest was unusual for a number of reasons. First, if something was in fact stolen from defendant, the property seized in plaintiff's home was not the same property. Also unusual was the rank of prosecutors involved for such a "minor" [174 MICHAPP 546] and "unprovable" case, i.e., Chief Prosecutor Richard Thompson and Prosecutor L. Brooks Patterson, and the prosecutor's involvement with the media. A local newspaper clipping entered into evidence quoted Patterson as stating on January 24, 1979:

"It would behoove him [plaintiff] to cooperate. If he wants to stonewall us, he can stonewall all the way to Jackson."

Leitman further testified that a nonsufficient-funds charge, filed against plaintiff seven days after his initial arrest, was brought without a citizen's complaint. He found this unusual because "one thing I learned in the prosecutor's office and I'm certain that it is the same throughout all of eternity is that the prosecutor's office is not a collection agency."

Leitman...