ISS CLEANING SERVICES GROUP, INC. AND JAMES WARNER, APPELLANTS/CROSS-APPELLEES,
v.
RICHARD A. COSBY, APPELLEE/CROSS-APPELLANT

Fla. 4th DCA | 1999-11-17
No. 98-0617
WARNER, C.J., and CONNER, BURTON C., Associate Judge, concur.
745 So. 2d 460 Florida District Court of Appeal, Fourth District (1999) Negative Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

ISS Cleaning Services and an employee appealed a jury verdict awarding Cosby damages for breach of contract and tortious interference with prospective business relations. The appellate court reversed the tortious interference award, finding insufficient evidence that a business relationship would probably have been completed but for the defendant's interference, and remanded to strike the associated punitive damages.


Holding

The court reversed the tortious interference award because Cosby failed to establish the required elements. For Sunshine, Cosby was actually hired despite knowing of the non-compete agreement, so no interference occurred. For Controlled Services, Cosby presented only hearsay testimony of a 'source' regarding why he was not hired and failed to prove an actual and identifiable agreement that would probably have been completed absent interference.


Headnotes

[1] A party seeking redress for tortious interference with a business relationship must establish the existence of a business relationship, the defendant's knowledge of it, i…

[2] An action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding that l…

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Key Quotes

“An action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.”

Establishes the legal standard for tortious interference with prospective business relationships, requiring proof that a deal would probably have been completed absent interference.

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Facts & Procedural History

Cosby was employed by National Cleaning Contractors (later acquired by ISS) and signed a non-compete agreement restricting solicitation of customers a…

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Opinion of the Court
STEVENSON, J.

STEVENSON, J.

Appellants, ISS Cleaning Services Group, Inc. (“ISS”) and James Warner, an ISS employee, challenge the jury’s verdict awarding Richard Cosby $5,604.44 for breach of contract, $92,500 compensatory damages for tortious interference with business relations, $500,000 punitive damages against ISS, and $10,000 punitive damages against Warner. Appellants claim error on numerous grounds, including that the trial court erred in denying their motions for summary judgment, for a directed verdict, and for a new trial on Cosby’s claims. In addition, appellants claim that the trial court erred in denying their motion for remittitur and that the punitive damages award, which exceeded three times the compensatory damages award, must be vacated as a matter of law. Cosby cross-appeals and argues that the trial court erred in denying his motion for attorney’s fees. We reverse because the trial court erred in denying appellants’ motion for a directed verdict on Cosby’s claim for tortious interference with business relations.

I. Background

National Cleaning Contractors, Inc., a janitorial and cleaning services company, employed Cosby as Vice President of Sales and Marketing, and later as Vice President and General Manager. Cosby and NCC executed a Bonus Agreement with Post-Employment Covenants which forbade Cosby from soliciting or accepting business from NCC customers, attempting to induce NCC employees to leave NCC, and interfering with NCC’s business relationships for one year after Cosby’s employment with NCC ceased. NCC was eventually acquired by ISS Cleaning Services Group, Inc. ISS reassigned most of Cosby’s duties and responsibilities, and decreased his $60,000 salary by approximately $18,000. Cosby was given a sales position and offered a commission plan to supplement his salary.

Subsequently, Cosby was terminated because ISS felt that Cosby’s transition from operations to sales “was not working out.” ISS paid Cosby two weeks salary in lieu of two weeks notice of termination. Shortly thereafter, Cosby interviewed for a job with Controlled Services. Cosby was not offered the position, but he eventually commenced employment with Sunshine Cleaning Services, Inc., one of ISS’s competitors. While working with Sunshine during 1994, Cosby earned approximately $38,142, inclusive of a car allowance. In 1995, Cosby earned a base salary of $40,-000.

ISS eventually filed suit against Cosby for breach of contract on the grounds that he solicited ISS customers on behalf of Sunshine, revealed ISS’s customer lists to Sunshine, removed and failed to return documents constituting trade secrets and confidential information belonging to ISS, and attempted to induce ISS employees to leave ISS. The complaint also alleged that Cosby tortiously interfered with ISS’s business relationships with ISS customers, misappropriated ISS’s confidential trade secrets by utilizing information regarding ISS’s bidding rates in order to prepare bids for Sunshine, and that Cosby gave ISS customer lists to Sunshine. Cosby counter-claimed against ISS for age discrimination; tortious interference with prospective business relations because Warner called Sunshine and Controlled Services — both companies from which Cosby sought employment after his termination from ISS — regarding the non-com-pet e provisions in the Bonus Agreement; and breach of contract for failing to pay the bonus owed Cosby pursuant to the Bonus Agreement at the time of his termination.

The jury rejected each of ISS’s claims against Cosby, ruled against Cosby on his age discrimination claim, but ruled on behalf of Cosby for tortious interference with prospective business relationships and breach of contract. The jury awarded damages to Cosby in the amount of $5,604.44 for breach of the Bonus Agreement, $92,500 compensatory damages, and $500,000 punitive damages for tortious interference with Cosby’s attempt to sedure employment after his termination. The jury also awarded punitive damages against Warner for $10,000 although it did not award compensatory damages against Warner. II. Tortious Interference

A party seeking redress pursuant to a claim for tortious interference with a business relationship must show 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, and 4) damage to the plaintiff as a result of the tortious interference with the relationship. See McCurdy v. Collis, 508 So. 2d 380, 383 (Fla. 1st DCA 1987). An action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered. See Ferguson Transp., Inc. v. North Am. Van Lines, Inc., 687 So. 2d 821, 822 (Fla.1996). Once a plaintiff has made a prima facie case, the burden shifts to the defendant to justify that the interference was lawful competition. See Wackenhut Corp. v. Maimone, 389 So. 2d 656, 658 (Fla. 4th DCA 1980).

The president of Sunshine, Lawrence Calufetti, testified that Warner called him shortly after he hired Cosby and told him about the non-compete agreement and that hiring Cosby in operations would “be a disaster.” Calufetti added that he would probably have hired Cosby even if he had known about the agreement. Because Cosby was hired by Sunshine Services, he has not established that ISS tor-tiously interfered with business relations between him and Sunshine. The only evidence presented that ISS tortiously interfered with Cosby’s prospective business relationship with Controlled Services came in the form of Cosby’s hearsay testimony that a “source” told him that the president of Controlled Services did not hire him because he learned of the non-compete agreement; however, no testimony was presented by the alleged “source.” In addition, Cosby failed to present competent substantial evidence of an actual and identifiable agreement between Controlled Services and himself which in all probability would have been completed had the alleged interference not occurred. Thus, the trial court erred in denying appellants’ motion for a directed verdict on Cosby’s tortious interference claims.

We have examined the other issues raised on appeal and cross-appeal, and find no error. We remand to the trial court to strike the punitive damage awards against ISS and Warner consistent with this opinion.

AFFIRMED in part; REVERSED in part.

WARNER, C.J., and CONNER, BURTON C., Associate Judge, concur.


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Citator

Cited By

  • …relationship on the part of the defendant; 3) an intentional and unjustified interference with the relationship; and 4) damage to the plaintiff as a result of the tortious interference with the relationship. ISS Cleaning Sens. Group, Inc. v. Cosby, 745 So. 2d 460, 462 (Fla. 4th DCA 1999). In this case, the trial court found that the complaint failed to allege any ultimate facts constituting the third element of the cause of action, namely the intentional and unjustified interference with the business relatio…
  • Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056 (Fla. 4th DCA 2011)
    …unty would have entered into the contract for services but for Realauction’s email. See St. Johns River Water Mgmt. Dist. v. Femberg Geological Servs., Inc., 784 So. 2d 500, 505 (Fla. 5th DCA 2001); see also ISS Cleaning Seros. Group, Inc. v. Cosby, 745 So. 2d 460, 462 (Fla. 4th DCA 1999) (reversing denial of directed verdict where there was not competent substantial evidence' of an agreement “which in all probability would have been completed had the alleged interference not occurred.”). [*1059] Grant Street…
  • JAY v. Forrest C. Mobley, Jr., 783 So. 2d 297 (Fla. 4th DCA 2001)
    …third amended complaint still fails to state a cause of action for interference with an advantageous business relationship, because Nu-gent’s conduct was not “unjustified” within the definition of the tort. ISS Cleaning Servs. Group, Inc. v. Cosby, 745 So. 2d 460, 462 (Fla. 4th DCA 1999). As we wrote in Cosby: A party seeking redress pursuant to a claim for tortious interference with a business relationship must show 1) the existence of a business relationship, not necessarily evidenced by an enforceable co…

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