Tamiami Trail Tours, Inc. v. Cotton

• Decision Date: 10 January 1985
• Docket Number: No. 63946,63946
• Citation: 10 Fla. L. Weekly 36,463 So.2d 1126
• Parties: 10 Fla. L. Weekly 36 TAMIAMI TRAIL TOURS, INC., a Florida corporation, and D.C. Crosby, Petitioners, v. J.C. COTTON and Aubrey Jesse Cotton, Respondents.
• Court: Florida Supreme Court

Page 1126

463 So.2d 1126

10 Fla. L. Weekly 36

TAMIAMI TRAIL TOURS, INC., a Florida corporation, and D.C. Crosby, Petitioners, v. J.C. COTTON and Aubrey Jesse Cotton, Respondents.

No. 63946.

Supreme Court of Florida.

Jan. 10, 1985.

Rehearing Denied March 14, 1985.

Albert M. Salem, Jr. of Salem, Musial & Morse, Tampa, for petitioners.

Woodburn S. Wesley, Jr., of Cotton, Wesley & Poche, Shalimar, and Stanley Bruce Powell of Stanley Bruce Powell, P.A., Niceville, for respondents.

PER CURIAM.

This is a petition to review Tamiami Trail Tours, Inc. v. Cotton, 432 So.2d 148 (Fla. 1st DCA 1983), on the ground that it conflicts with Berenson v. World Jai-Alai, Inc., 374 So.2d 35 (Fla. 3d DCA 1979), Hales v. Ashland Oil, Inc., 342 So.2d 984 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1214 (Fla.1978), and John B. Reid & Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla. 3d DCA 1965). We have jurisdiction, Article V, section 3(b)(3), Florida Constitution, and we approve the decision in part and disapprove it in part.

Petitioners were sued by respondents in a two-count complaint. Count I alleged tortious interference and conspiracy to interfere tortiously with a business relationship of respondent, J.C. Cotton. Tamiami was joined in Count I on the basis of an alleged agency relationship. The count included William Stowe d/b/a City Cab Company as a defendant. A directed verdict was entered in Stowe's favor. Count II alleged that Crosby had committed an assault and battery on A.J. Cotton in the course of the tortious interference with the business relationship. Tamiami was not expressly joined in this count.

The evidence presented at trial is set forth more fully in the district court opinion. For our purposes, it is enough to say that there was evidence that Crosby, who was the manager of Tamiami's Fort Walton Beach bus station, committed numerous tortious acts which interfered with J.C. Cotton's attempts to furnish taxicab service to bus passengers and also assaulted and battered A.J. Cotton. There was evidence tending to show that the tortious acts occurred both on and adjacent to the Tamiami bus station. The evidence also tended to show that J.C. Cotton persistently informed Tamiami of the early instances of Crosby's misconduct and that Tamiami's response was tepid and ineffective. The jury returned verdicts on both counts, assessing compensatory and punitive damages against both petitioners.

Petitioners presented nine points on appeal to the district court. The district court affirmed on all nine points but determined that only points one and five merited discussion. Point one is the issue in conflict. The district court canvassed the law on pleading a prima facie case of tortious interference with a business relationship and determined that four elements were required to establish such a case: (1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship. Cases were cited in support from the First, Second, and Fourth District Courts ¹ and one case from this Court, Dade Enterprises, Inc. v. Wometco Theatres, Inc., 119 Fla. 70, 160 So. 209 (1935). The district court rejected petitioners' argument that element number 3 (intentional and unjustified interference with a business relationship) required a showing that the interference was intended to secure a business advantage over the plaintiff. The district court recognized that its rejection conflicted with the position of the Third District Court of Appeal. This point of law was critical to respondents' case because there was no evidence or suggestion that Tamiami or Crosby received any business advantage from Crosby's interference with respondents' taxicab service.

We approve that portion of the decision of the district court and, to the extent they conflict, disapprove the decisions of the Third District Court of Appeal in Hales, John B. Reid & Associates, Inc., and Berenson. This issue is controlled by our decision in Dade Enterprises which does not require that the plaintiff in such suit establish that the defendant interfered with the business relationship in order to secure a business advantage. It may well be that most such cases will involve proof that the defendant's motive was to secure a business advantage and, thus, that the interference was intentional. However, we see no logical reason why one who damages another in his business relationships should escape liability because his motive is malice rather than greed. The action is tortious, regardless of motive.

Next petitioners argue that the jury returned a verdict showing that Crosby was not acting within the scope of his employment when he committed the tortious acts and, thus, that Tamiami cannot be assessed punitive damages absent a showing of wanton and willful conduct on its part. The record shows that the jury was instructed that Tamiami could be held liable for the tortious acts of Crosby under two theories: (1) vicarious liability as a principal for the actions of its agent acting within the course and scope of his employment, or (2) as a possessor of property who fails to control the actions of its servant on the property, even though the servant is acting outside the course and scope of his employment. The jury found Tamiami liable under the second theory. However, this issue was nowhere framed in the pleadings.

The complaint alleged Tamiami's liability only on the theories of conspiracy and agency. The conspiracy allegation was dismissed by the trial court upon defense motion after the close of plaintiff's case-in-chief. The defense was first apprised of the new theory of liability under which plaintiff sought damages from Tamiami at the charge conference after all the evidence had been entered.

The defense attorney repeatedly objected to both the charge and the special interrogatory on the verdict which allowed finding Tamiami liable for Crosby's actions outside the scope of his employment. No motion was ever made to conform the pleadings to the evidence, nor were the pleadings ever amended to include this theory. In short, Tamiami was sandbagged. It proceeded to trial on notice that it had to defend against charges of tortious interference with a business relationship for actions attributable to it on theories of conspiracy or agency. It won verdicts absolving it of liability on both theories. It was found liable on a theory it never had an opportunity to rebut at trial. While the theory itself is the law of the state, the procedural requirements of due process will...