Union Oil of California Amsco Div. v. Watson

• Decision Date: 16 April 1985
• Docket Number: No. 83-2772,83-2772
• Citation: 10 Fla. L. Weekly 979,468 So.2d 349
• Parties: 10 Fla. L. Weekly 979 UNION OIL OF CALIFORNIA, AMSCO DIVISION, Appellant, v. John WATSON, Appellee.
• Court: Florida District Court of Appeals

Page 349

468 So.2d 349

10 Fla. L. Weekly 979

UNION OIL OF CALIFORNIA, AMSCO DIVISION, Appellant, v. John WATSON, Appellee.

No. 83-2772.

District Court of Appeal of Florida Third District.

April 16, 1985.

Rehearing Denied May 29, 1985.

Mershon, Sawyer, Johnston, Dunwody & Cole and Edward T. O'Donnell and Aubrey V. Kendall and James M. McCann, Miami, Adkins & Hardy, Coral Gables, for appellant.

Joe Unger, Proenza & White, Miami, for appellee.

Before HUBBART, BASKIN and FERGUSON, JJ.

FERGUSON, Judge.

Appellant, Union Oil of California, Amsco Division ("Union Oil"), was the defendant in a suit for malicious prosecution brought by appellee John Watson.

Appellant raises nine points on appeal which contain eighteen sub-issues. One of the questions, which goes to an element of a malicious prosecution claim, is dispositive of the case: whether the first action, in which Union Oil sued Watson, terminated in Watson's favor.

This action derives from an earlier lawsuit instituted in October, 1977, by Union Oil against Dade Oil, Inc., its sole owner and operating officer, John Watson, and Jerry Mabie, individually and as trustee for Southern States Petroleum, Inc. ("Southern States"), a dissolved Florida corporation. Union Oil's earlier suit included three counts. Count I, against Mabie, as trustee for Southern States, alleged the breach of a contract by which Union Oil extended credit to Southern States for petroleum products. Count II, against Mabie, as trustee for Southern States, and Dade Oil, sought recovery of certain intangible properties of Southern States (i.e., accounts receivable, customer lists, and proceeds), in which Union Oil held a security interest and which were then in the possession of Dade Oil. Count III, which incorporated the allegations in counts I and II, alleged damages caused by Dade Oil, John Watson, individually, and Jerry Mabie, individually and as trustee for Southern States, resulting from a conspiracy to convert Union Oil's security interest in the intangible property of Southern States.

Dade Oil and Watson moved for partial summary judgment on the conspiracy claim. The motion was denied. The court granted Union Oil's motion for partial summary judgment on counts I and II against Mabie, as trustee for Southern States, and against Dade Oil, finding both defendants liable as alleged. No appeal was taken by Dade Oil from the non-final partial summary judgment finding it liable to Union Oil for the return of, and an accounting on, the security agreement. See Fla.R.App.P. 9.130(a)(3)(C)(iv). Neither was an appeal taken from the final judgment for the obvious reason that Dade Oil prevailed in the trial on damages.

Shortly before the trial on damages, Mabie, individually and as trustee for Southern States, entered into a settlement agreement with Union Oil whereby he agreed to pay $4000 and Union Oil agreed to release its claims against him in both capacities. The conspiracy to convert count against Watson was also voluntarily dismissed on or about May 6, 1981. ¹ The pleadings are not a model of clarity but the parties appear to agree that the case went to trial against Dade Oil solely on the issue of damages caused by the conversion.

The undisputed facts as developed at trial show as follows. Jerry Mabie was the owner and operator of Southern States, a company which purchased petroleum products for retail resale. He signed a promissory note and agreement whereby he gave Union Oil a security interest in Southern States' general intangibles which included accounts receivable and customer lists. Sometime later Mabie decided to sell Southern States. He opened negotiations with Watson, another distributor of Union Oil's products. During those negotiations, William Dwyer, Union Oil's regional credit manager, reminded both Watson and Mabie of Union Oil's security interest in the assets of Southern States and of Southern States' continued indebtedness to Union Oil. Dwyer insisted that Union Oil be paid for the debt which was secured by the customer lists.

In October, 1976, Dade Oil consummated the purchase of Southern States' assets, which included its customer lists and telephone listing, for a price of $27,000 to be paid by Dade Oil to Southern States. The purchase price also included consideration for Mabie's agreement not to compete. By an addendum to the original contract, the terms were changed. Southern States was to receive $2,000 for the customer lists and telephone listing and the remaining $25,000 was to be paid to Jerry Mabie, individually, as consideration for his covenant not to compete. Watson and Mabie executed the addendum agreement between Southern States and Dade Oil as officers of their respective corporations; ² Mabie signed also as an individual and Watson signed as a personal guarantor. Union Oil received no proceeds from the sale of Southern States' assets towards the payment of Southern States' indebtedness to Union Oil, which then amounted to approximately $13,700.

Union Oil contacted Watson after being unsuccessful in attempts to collect from Mabie. It learned from Watson that Southern States' assets had been transferred to Dade Oil; Watson then mailed Union Oil a copy of the customer lists. Failing in its attempts to collect payments directly from Southern States' customers or to have the debt satisfied by Mabie or Watson, Union Oil brought the action against Southern States, Mabie, Dade Oil and Watson.

After the trial on damages only, a final judgment was entered for Dade Oil. A jury found, obviously, that the customer lists, which had an undisputed $13,500 value when converted by Watson, had not diminished in value when they were returned to Union Oil by Watson.

Following the final judgment in Union Oil's lawsuit, Watson filed this malicious prosecution action in which he alleged that Union Oil was motivated by actual malice and had acted wilfully and wantonly in commencing and continuing its action against him without probable cause to support its allegations. Watson sought compensatory and punitive damages because he had been "intimidated and frightened" by the suit and had suffered direct pecuniary loss, expenses, and mental anguish as a result thereof. A jury awarded him $100,000 in compensatory damages and $2,500,000 in punitive damages.

Union Oil contends that its voluntary dismissal of Watson from the earlier action proved nothing about the legitimacy of Union Oil's claim and there was otherwise no evidence of a termination of that action favorable to Watson. Watson counters that the voluntary dismissal of the conspiracy action as to him constituted a bona fide termination of the lawsuit in his favor.

The elements of malicious prosecution are (1) a legal proceeding commenced or continued against the plaintiff, (2) the defendant caused or commenced the proceeding, (3) the proceeding had a bona fide termination in plaintiff's favor, (4) there was no probable cause for commencing the proceeding, (5) the defendant acted with malice, and (6) the plaintiff suffered damage. See Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978). If any one of the elements is lacking, an action for malicious prosecution will not lie. Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA), cert. denied, 252 So.2d 797 (Fla.1971).

A bona fide termination of the proceeding in the plaintiff's favor is an essential element of a malicious prosecution action. DeMarie v. Jefferson Stores, Inc., 442 So.2d 1014, 1016 n. 1 (Fla. 3d DCA 1983); Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981). That element is satisfied by either a favorable decision on the merits or a bona fide termination of the proceedings. Weissman, 396 So.2d at 1167; Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980). ³ There is no question here but that there was no favorable termination of the earlier proceeding as to Dade Oil, Inc. The narrow question presented on this point is whether the voluntary dismissal of Watson constituted a favorable termination as to him in light of the total circumstances of the dismissal.

Generally, whether a withdrawal or abandonment of the proceedings constitutes a favorable termination depends upon the circumstances under which the withdrawal occurs. Restatement (Second) of Torts § 674 comment on clause (b) (1977). Where dismissal is on technical grounds, ⁴ for procedural reasons, or any other reason not inconsistent with the guilt of the accused, it does not constitute a favorable termination. Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335 (1941); Jackson v. Beckham, 217 Cal.App.2d 264, 31 Cal.Rptr. 739 (1963); Oppenheimer v. Tamblyn, 167 Cal.App.2d 158, 334 P.2d 152 (1959). The converse of that rule is that a favorable termination exists where a dismissal is of such a nature as to indicate the innocence of the accused. Hickland v. Endee, 574 F.Supp. 770, 779 (N.D.N.Y.1983), aff'd, 732 F.2d 142 (2d Cir.1984); Lackner v. LaCroix, 25 Cal.3d 747 602 P.2d 393, 395, 159 Cal.Rptr. 693, 695 (1979); Restatement (Second) of Torts § 660 comment a (1977). For example, where a dismissal is taken because of insufficiency of the evidence, the requirement of a favorable termination is met. Jackson, 31 Cal.Rptr. at 743; Oppenheimer, 334 P.2d at 154-155. ⁵ In order to determine whether the termination of an action prior to a determination on the merits ⁶ tends to indicate innocence on the part of the defendant one must look to whether the manner of termination reflects on the merits of the case. Lackner, 602 P.2d at 394-395, 159 Cal.Rptr. at 694-695; Minasian v. Sapse, 80 Cal.App.3d 823, 145 Cal.Rptr. 829 (1978).

In some cases a voluntary dismissal does reflect on the merits, as where the record contains evidence indicating a lack of probable cause. See, e.g., Kennedy v. Byrum, 201 Cal.App.2d...