Southern Bell Tel. and Tel. Co. v. Roper
| Decision Date | 18 October 1983 |
| Docket Number | No. 81-2208,81-2208 |
| Citation | 438 So.2d 1046 |
| Parties | SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. Mack ROPER, Appellee. |
| Court | Florida District Court of Appeals |
Walton, Lantaff, Schroeder & Carson and Joan S. Buckley and George W. Chesrow, Miami, for appellant.
Adams, Ward, Hunter, Angones & Adams, Horton, Perse & Ginsberg and Arnold Ginsberg, Miami, for appellee.
Before HUBBART, NESBITT and BASKIN, JJ.
This is an appeal from a final judgment for the plaintiff entered upon a jury verdict in an action for malicious prosecution and intentional interference with a business relationship. We reverse the final judgment as to the malicious prosecution claim with directions to enter judgment for the defendant, as the claim herein is barred by res judicata. We reverse the final judgment as to the intentional interference with a business relationship claim and remand for a new trial based on an erroneous admission at trial of certain polygraph test evidence.
The plaintiff Mack Roper operated, through a defunct corporation, a janitorial service business in Dade County, Florida. He had a contract with the defendant Southern Bell Telephone & Telegraph Company to maintain two of Southern Bell's buildings in downtown Miami; Domingo Echemendia was employed by the plaintiff Roper to supervise the maintenance of these two buildings. In the course of his duties, Echemendia reported to Southern Bell security representatives that a Southern Bell employee was stealing Bell system floor finish and selling it to the plaintiff Roper. An investigation by the defendant Southern Bell ensued, during the course of which several of the plaintiff Roper's business clients were contacted by Southern Bell representatives. It is claimed that Southern Bell security representatives accused the plaintiff Roper of stealing Bell system floor finish, resulting in an asserted loss of business. This investigation also led to the filing of an information by the State Attorney for the Eleventh Judicial Circuit of Florida charging plaintiff Roper with theft of the subject floor finish. On May 19, 1976, Roper was tried on this charge and acquitted by a jury in the Circuit Court for the Eleventh Judicial Circuit of Florida.
The plaintiff Roper thereupon brought suit in the court below in November 1976 against the defendant Southern Bell for malicious prosecution. ("Roper I"). On May 24, 1977, the trial court entered a summary judgment for the defendant Southern Bell on the ground that the filing of the information in this case by the state attorney conclusively determined that there was probable cause to prosecute the plaintiff Roper, thereby barring the malicious prosecution action, based on the controlling authority of McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d DCA 1977). No appeal was taken from this final judgment by the plaintiff Roper. Subsequently the Florida Supreme Court disapproved the McKinney decision and held that the filing of an information by a state attorney is not a conclusive finding of probable cause in the case and does not constitute an absolute bar to a malicious prosecution action. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).
On October 17, 1977, the plaintiff Roper filed a second lawsuit ("Roper II") in the court below against the defendant Southern Bell. This complaint, as subsequently amended, asserted causes of action for malicious prosecution, intentional interference with a business relationship, slander and conspiracy. The defendant Southern Bell filed an answer and subsequently moved for summary judgment inter alia as to the malicious prosecution claim based on res judicata grounds. Southern Bell contended that the malicious prosecution claim was, in essence, the same claim which had been brought and adjudicated in Southern Bell's favor in "Roper I." The trial court denied the motion for summary judgment.
After considerable procedural skirmishing, the case ultimately came to trial below. During the course of the trial, the plaintiff Roper called as a witness the assistant state attorney who had prosecuted the criminal case against the plaintiff Roper. Over timely defense objection, the assistant state attorney testified that he became suspicious of the credibility of the state's chief witness in the case [Domingo Echemendia], that he [the assistant state attorney] arranged for a polygraph examination of this witness by a respected private polygraph examiner in Miami, that the results of that examination were made known to him [the assistant state attorney] and to Southern Bell representatives, and that he [the assistant state attorney] subsequently recommended that the criminal charges against the plaintiff Roper be dropped but Southern Bell representatives...
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