Rodgers v. W.T. Grant Co.

• Decision Date: 30 June 1975
• Docket Number: No. W--243,W--243
• Citation: 326 So.2d 57
• Parties: Mary J. RODGERS and Glenn F. Rodgers, her husband, Appellants, v. W. T. GRANT COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 57

326 So.2d 57

Mary J. RODGERS and Glenn F. Rodgers, her husband, Appellants, v. W. T. GRANT COMPANY, a corporation, Appellee.

No. W--243.

District Court of Appeal of Florida, First District.

June 30, 1975.

Rehearing Denied Feb. 3, 1976.

Luke G. Galant, for Dawson, Galant, Maddox, Sulik & Nichols, for appellants.

Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, for appellee.

JOHNSON, Judge.

Appellants seek reversal of a final summary judgment in favor of appellee in a suit brought by appellants for malicious prosecution. The action arose as a result of appellee causing the issuance of a warrant against appellant, Mary J. Rodgers, charging her with having issued a worthless check to appellee in the amount of $5.14. There was a preliminary hearing before a Justice of the Peace and, after discussions which will be set forth below, appellant was bound over to the Criminal Court for prosecution. The case was 'nol prossed' in the Criminal Court, and appellants instituted the present proceeding for malicious prosecution. The trial court granted appellee's motion for summary judgment upon the ground that the matter of the existence of probable cause was adjudicated and determined by the action of the Justice of the Peace in binding the case over for prosecution. There being no showing of the existence of the necessary elements to support an action for malicious prosecution, the trial court entered summary final judgment for appellee. For the reasons hereinafter delineated, we agree and affirm.

A more specific recaption of the facts leading up to the present case is as follows.

Mary J. Rodgers, whom will hereinafter be referred to as 'appellant,' bought merchandise from W. T. Grant Company in Jacksonville in September of 1971, for which she gave Grant a check in the amount of $5.14, drawn on Lake Forest Atlantic Bank, Jacksonville. Before appellee accepted the appellant's check, she was required to show her driver's license and to write on the check her telephone number, viz: 388--0608. Some seven or eight days later she closed out the account on which the check was drawn, and the balance was deposited in a different account, a checking account. The appellant then went to Grant's on September 13, 1971, and advised the manager of the store, who it was later ascertained was Mrs. Bridges, that she had given the check which had not cleared and that it may be returned because she had closed the account. Mrs. Bridges, in her capacity as manager in as large a store as Grant's in Jacksonville, routinely advised Mrs. Rodgers that if her The testimony taken before the Justice of the Peace in October of 1971, reveals the fact that when the check in question was returned to Grant's bearing the notation of 'account closed', the credit manager or credit employee of Grant's attempted to call Mrs. Rodgers about the check, but was advised that the telephone number on the check was not that of Mrs. Rodgers. It was also brought out that the correct telephone number of Mrs. Rodgers was 388--0806, but the employees of Grant's had no way of knowing the number was mistakenly, but erroneously given as 388--0608. Although this error involved only the reversal of two digits of the telephone number, it cannot be treated as of small materiality when as a fact the error changed the telephone number enough that it would have amounted to several hundreds of numbers before the correct number of Mrs. Rodgers could have been ascertained. In fact, it could have reasonably been inferred by the credit manager that the erroneous phone number was given intentionally.

phone number was on the check and the check was returned, she would get in touch with Mrs. Rodgers. The appellant, at that time, did not realize that she had given the wrong telephone number on the check, and therefore did not advise Mrs. Bridges that the phone number on the check was wrong.

But be that as it may, when the bad check was processed through the Justice of Peace after service was made by the Constable, and the concerned parties were before the Justice of the Peace and the true facts had been aired, the Justice of the Peace was ready to dismiss the charge upon payment of only the amount of the check which was already paid and with the understanding that 'that would end' the matter. Counsel for the appellant demurred about giving a release from future--(We think the court intended to add 'trouble').

The colloquy between the Justice of the Peace and counsel for the appellants can better depict the picture if quoted, to wit:

'THE COURT: In the interest of not letting something like this go to Criminal Court, and it will cost everybody,--if she is willing to pay this check this court at this time will withdraw the charges on the check, if you want to do it that way.

'MR. GALANT: Well, she is willing to pay it, Your Honor. She has already paid it if they will take her money, and then I would like to have the charges dismissed.

'THE COURT: If the charges are dismissed, at that time are you willing to give her clearance to give this lady a release from any future--

'MR. GALANT: I don't think we are prepared to do that at this time, Your Honor.

'THE COURT: If we can't clear this up today,--I mean, the court's interest in this thing was clearing the whole thing up today. If we can't clear it up today, I am going to bind it over to Criminal Court.

'MR. GALANT: Well, Your Honor, this matter of a release is utterly immaterial to these proceedings and has nothing to do with it. I submit there's absolutely no intention--there is obviously no intention on the part of this lady to have

'THE COURT: The only way, Mr. Galant, that we can take care of this now is with the complainant withdrawing the charge because the thing would have been taken care--

'MR. GALANT: She has already--

'THE COURT: The court doesn't want to put either side in jeopardy, for that matter, so we will bind this over to Criminal Court on a proper bond.

'MR. GALANT: All right, Your Honor.

'THE COURT: There is a five dollar check. We will make it a five dollar bond.

'MR. GALANT: All right, sir.

'THE COURT: I imagine you will want to put up a cash bond.

'MR. GALANT: Yes, five dollars cash bond.

'THE COURT: All right, it will be a six dollars cash bond.

'MR. GALANT: All right, sir.'

It is clear to us that the first error was committed by Mrs. Rodgers when she gave the wrong telephone number. The next error was when counsel for appellants was not ready to drop the matter. It is equally clear to us that Grant's employees were not motivated by any malice nor any desire to punish appellants. The routine proceeding on a bad check charge was reasonably instituted when the telephone number given by the appellant was wrong and was enough to warrant this procedure. The Justice of the Peace and Grant's were ready to stop. The Justice of the Peace tried to amicably settle a matter in his court, although the origin of the trouble began with the error of the appellants.

We conclude that the trial court was correct in granting the defendant's (appellee's) motion for summary judgment. The Supreme Court of Florida has held that the presence of probable cause was adjudicated when the Justice of the Peace held the appellant should answer the charges and probable cause was presumed from the official action. ¹ The Justice of the Peace could not try the case. He could and did try to get the charges dismissed, to which the appellee agreed, but since it could not be dismissed and not 'put either side in jeopardy, for that matter', we think all essence of any cause of action for malicious prosecution faded into nothing.

The final summary judgment in favor of appellee is, accordingly, affirmed.

McCORD, J., concurs.

RAWLS, C.J., dissents.

RAWLS, Chief Judge (dissenting).

I dissent. It is elementary that in entering a summary judgment the trial court must conserve the facts in a light most favorable to the party moved against. I therefore recite the facts as I glean same from this record.

The facts are not disputed. On September 2, 1971, Mary J. Rodgers, in payment for a purchase, gave a personal check drawn on a special bank account to W. T. Grant Company. She had ample money in the bank at that time to cover the check. On September 8, 1971, Mary closed the special checking account and opened a regular checking account at the same bank. On September 13, 1971, she received a statement from her bank, together with her cancelled checks, but the check to W. T. Grant Company for $5.14 had not cleared. On that same date (September 13) Mary 'went down to Grant's' and advised its office manager, Dorothy Bridges, of the situation. Mrs. Bridges told Mary not to worry, and in the event the check was returned to the store, she would be notified. ¹

At this stage, I pause to note that the majority places great emphasis on the fact that the telephone number given by Mary had two digits reversed and then squarely places full liability upon Mary for the ensuing gross conduct of Grant. It is significant Approximately one month later, on October 14, 1971, Grant's agent 'swore out a warrant' charging Mary with having issued a worthless check. Shortly thereafter, a constable knocked on Mary's door, a constable knocked on Mary's door, served a warrant, and advised her if she would take $22 to the Justice of the Peace that it would settle the matter. When Mary told her husband (appellant Glenn F. Rodgers) about her conversation with the constable, he said: '. . . that there wasn't no way that I was going to take that amount of money for that check, that it wasn't right, and that there was no way that I had knowingly and willingly wrote a worthless check.' Mary then again went to Grant's and talked to Mrs. Bridges, who stated that she remembered and when the check came back it seemed like the phone number was not right. Mary then told Mrs. Bridges about the paper, whereupon Mrs. Bridges said, 'I am going to call out there...