Brookshire Grocery Co. v. Richey , 899 S.W.2d 331 ( 1995 )

HADDEN, Justice.

This is a malicious prosecution case. Appellant, Brookshire Grocery Company (“Brookshire”), appeals from a judgment awarding Appellee, Kelley Richey (“Richey”), $18,400.00 in actual damages and $18,400.00 in exemplary damages. In seventeen points of error, Brookshire challenges the legal and factual sufficiency of the evidence, the court’s charge, the exemplary damages award, and the award of pre-judgment interest. We will reverse and render.

On December 11, 1989, around 2:30 a.m., Richey entered a Brookshire Super 1 grocery store to purchase groceries. When he first entered the store, the night manager, Russell Farris (“Farris”), saw Richey take a package of cigarettes and place it in his shopping cart. A few minutes later, he saw Richey “twiddling” the cigarettes. When Farris made eye contact with Richey, Richey dropped the cigarettes back into the shopping cart. Minutes later, Farris saw Richey put the cigarettes in his coat pocket where they were then concealed.

Based upon his prior experience with such behavior, Farris continued to watch Richey as he shopped. When Richey approached the check-out counter, Farris, who was standing about fifteen feet away in full view of Richey, saw him write a check ($51.75) and then sack his groceries.¹ However, when he went through the check-out, Richey did not pay for the cigarettes which were still concealed in his pocket. Before moving away from the counter, Richey stopped and pulled out a food carton and began to read the label for the next thirty seconds to two minutes. Farris felt that Richey was stalling and trying to figure out what to do. As Richey started toward the exit, Farris also headed toward the door with the intention of detaining Richey in the parking lot. Once again, Richey stopped near the exit by a charity bin, left his shopping cart, and got a sack. He walked down the baby food aisle and filled the sack with baby food, went back through the check-out counter, and paid cash ($8.89) for this purchase. Richey still did not pay for the cigarettes in his pocket. He returned to his shopping cart, placed the sack of baby food in the charity bin and exited the store.

Outside in the parking lot, Farris and a fellow employee,² stopped Richey and asked him if he had forgotten to pay for anything. Richey said “No.” When Farris asked him about the cigarettes, Richey said that he had inadvertently put them in his pocket and offered to pay for them. In accordance with store policy, Farris did not accept payment. He requested that Richey accompany him into the store office, and Richey complied. The police were called. When the police officer arrived, Richey told him that he wanted to be sime that he put in his report that he made a contribution to the charity bin. The police officer filled out an incident report and gave Richey a citation for misdemeanor theft. Richey was not arrested. As he was leaving the store, Richey returned to the charity bin, removed the sack of baby food and took it to his car. Later that day, Farris signed a sworn complaint with the City Municipal Court charging Richey with theft under $20.00. Tex.Penal Code Ann. § 31.03(b)(1) (Vernon 1994).

At the municipal court trial, Richey never denied taking the cigarettes, but claimed that he had no intent to steal them. The jury found Richey not guilty. Thereafter, Richey sued Brookshire for malicious prosecution.

During the malicious prosecution trial, Richey again admitted to taking the merchandise without paying for it, but claimed that it was inadvertent. He contended that Brookshire did not have probable cause to file the action against him, that he had been treated unfairly by Brookshire, and that he suffered damages. At the close of the evidence, the trial judge denied Brookshire’s motion for directed verdict, and submitted “Special Issue No. 2A” to the jury as follows:

QUESTION NO. 2A

Do you find that the Defendant did not have probable cause to file a criminal prosecution against Kelly Richey?

“PROBABLE CAUSE” is the existence of such facts and circumstances as would cause the belief, in a reasonable mind, acting on the facts within the knowledge of the complainant that the person charged was guilty of the crime for which he or she was prosecuted.

“THEFT” — A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property.

Answer ‘Wes” or “No.”

The jury’s answer to this question was “Yes.” Thereafter, the court overruled Brookshire’s motion for judgment notwithstanding the verdict, and rendered judgment that Richey recover actual damages of $18,400.00, exemplary damages of $18,400.00, and pre-judgment and post-judgment interest. Hence, Brookshire appeals to this Court.

In its first point of error, Brookshire claims the trial court erred in denying its motion for directed verdict and overruling its motion for judgment notwithstanding the verdict because the evidence was legally insufficient to support the jury’s findings that Brookshire did not have probable cause to file a criminal prosecution against Richey.

Because of the inherent tendency of an action for malicious prosecution to stultify the reporting of crimes, it is not favored in the law. Ada Oil Co. v. Dillaberry, 440 S.W.2d 902 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d w.o.j.). The unique character of this type of action is described in the court’s holding in Reed v. Lindley:

The action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another and the courts have allowed recovery only when the requirements limiting it have been fully complied with. The disfavor with which the action is looked upon is especially marked in cases where the suit is being brought for the institution of criminal proceedings against the plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage.

Reed v. Lindley, 240 S.W. 348, 351 (Tex.Civ. App.—Fort Worth 1922, no writ). Recently, the Supreme Court has stated that “What is distinctive about malicious prosecution is that there is little room for error in applying the law. Even a small departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrongful prosecution and encouraging reporting of criminal conduct.” Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288 (Tex.1994). It is within this context that we address the issues in this case.

To encourage reporting of crimes, and to ensure that citizens who do so in good faith will not suffer for their actions, the plaintiff must prove several rigorous elements. Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 499 (Tex.Civ.App.—Dallas 1971, no writ); American Motors Finance Co. v. Cleckler, 28 S.W.2d 274 (Tex. CivApp.—Eastland 1930, no writ). Those elements are:

(1)the commencement of a criminal action against plaintiff;

(2) institution of the action by defendant;

(3) termination of the prosecution in plaintiff’s favor;

(4) the absence of probable cause for filing of a criminal complaint;

(5) malice in filing the complaint; and

(6) damage to plaintiff.

Coniglio v. Snyder, 756 S.W.2d 743, 744 (Tex. App.—Corpus Christi 1988, writ denied). The failure of plaintiff to prove any one of the above elements is fatal to his case. We will deal first with element four, probable cause, for it will be dispositive of the case.

An action for malicious prosecution cannot be maintained without showing a want of probable cause. The definition of “probable cause” in the court’s charge was correct. Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984). The question is not what the actual facts were, but what the complainant honestly believed them to be. Coniglio, 756 S.W.2d at 744.

In every malicious prosecution case there is, initially, a rebuttable presumption that a defendant acted in good faith and with probable cause. Akin, 661 S.W.2d at 920. When the facts which bear on probable cause are not in dispute, the issue of probable cause is a question of law to be decided by the court. Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906, 908 (Tex.Civ.App.—San Antonio 1949, writ refd n.r.e.).

An appellant challenging the legal sufficiency to support an adverse finding on an issue on which he did not have the burden of proof must demonstrate on appeal that no evidence supports the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); R.W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 364-68 (1960). Our standard of review is to consider only the evidence and reasonable inferences which tend to support the jury finding and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988).

A “no evidence” point of error must be sustained when the record discloses one of the following: (1) evidence of a vital fact is completely absent; (2) the court is barred by rules of law or evidence from giving weight to any evidence offered to prove a vital fact; (8)the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Juliette-Fowler Homes, Inc. v. Welch Assoc., 793 S.W.2d 660, 666 n. 9 (Tex.1990); R.W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. at 364-68.

If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. In re King’s Estate, 160 Tex. 662, 664, 244 S.W.2d 660, 661 (1951). However, if the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, it is no more than a scintilla and, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The test for the application of the no evidence/scintilla rule is that if reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, it will be held to be the legal equivalent of no evidence. Id.

The “no evidence” inquiry in malicious prosecution cases is not whether, in actuality, the plaintiff was innocent, but whether the complaining party had reasonable grounds, from the facts known to him at the time, to believe that the accused was guilty. Akin, 661 S.W.2d at 920. This is because the person initiating a prosecution does not have the same information as all those who intimately know the alleged shoplifter, and because the complaining party does not have all the evidence that a jury can consider in a criminal jury trial. Id. Consequently, the standard of review must be applied to the circumstances as they existed prior to the time when the initiation of the prosecution began. Parker, 463 S.W.2d at 500.

After examining the entire record, we see no evidence to support the finding of lack of probable cause; at best, there exists only a scintilla of evidence to support the finding. Richey contends that the following factors raise the issue of lack of probable cause:

(1) It was only a pack of cigarettes valued at $1.47.

(2) The cigarettes were first simply put in the shopping cart.

(3) Richey, at one point, knew he was being watched, but did not appear nervous.

(4) It is a smoker’s habit to place cigarettes in one’s pocket.

(5) Richey paid for $51.75 worth of groceries.

(6) After checking out, Richey perused the package label on an item purchased.

(7) On his way out of the store, Richey donated $8.89 worth of groceries to charity.

(8) Farris did not include some of the above information in his company report, nor in the police report.

Richey argues that the above factors would have put a reasonable and prudent store manager on notice of lack of intent.

The incident must be viewed, however, from the standpoint of a reasonable, prudent person under the circumstances with which Farris was faced. Farris was the manager of a large retail grocery. He knew that shoplifting was a large problem experienced by Brookshire stores. He knew that the number one item shoplifted at Brookshire stores is cigarettes, an item of small value, and that there is no typical profile of “shoplifters.” Farris knew that people of all ages and economic background shoplift, and that shoplifters do illogical things. He knew that the best way to tell if someone is shoplifting is to observe their actions. He was acting under the policy of his employer, which stated that he was to detain a customer only if he was: (1) sure the shoplifter had concealed the merchandise; (2) sure the shoplifter still had the merchandise in his possession; and (3) sure that the shoplifter had the opportunity to pay for the concealed merchandise by passing through the check-out stand.

Viewing the facts in the light most favorable to the jury verdict, we fail to see how any of the above factors presented by Richey could be any more than a scintilla of evidence showing a lack of probable cause. Rather, the overwhelming evidence is to the contrary. Richey admitted that the cigarettes which he picked up were placed in, and concealed, in his left coat pocket while shopping in the store, and that he did not pay for the cigarettes when he went through the check-out. These factors were observed by Farris prior to his detention of Richey. Further, Richey admitted under oath that probable cause existed and that his conduct would appear to another person to be shoplifting.

The record reflects the following exchange between Brookshire’s counsel and Richey during cross-examination:

Q: I know you had no intent but yet from your actions it looks like somebody was actually shoplifting by picking up those cigarettes and concealing them, isn’t that right?

A: That’s right.

Q: I believe in that letter that your attorney offered in evidence written to Mr. Brookshire, was there some admission in there that it was a silly mistake?

A: Yes.

Q: So you are in fact — at least you are saying at least this much, that it was a mistake to put those cigarettes in your coat pocket?

A: Obviously so.

Q: And the reason why it was a mistake is because somebody could look at that and think you were in fact shoplifting based on what they observed about your conduct?

A: That’s right.

Q: You picked the cigarettes up and put them in your coat pocket?

A: Uh-huh.

Q: Right?

A: Right.

Q: Let me ask you, is that the type of thing — if a person was to shoplift, would that be a normal place to put a pack of cigarettes?

A: I don’t know, I assume it could, yeah.

Q: That makes sense doesn’t it, if somebody shoplifts they will put it in a pocket or someplace where somebody can’t see it?

A: Uh-huh.

Q: In a practical sense, you could have been found guilty of the charges?

A: Yes, that’s possible.

Q: Are you claiming that Russell Farris didn’t have a right to stop you outside the store and inquire as to the nature of that property?

A: No, he had the right to stop me.

Q: I believe you testified earlier that it was possible that the jury could have found you guilty in the criminal trial, is that correct?

A: Yes, that is correct.

Richey further argues that while his conduct would have caused a reasonable person to believe that he was shoplifting and that Brookshire had a right to detain him, Brookshire is liable for malicious prosecution because Richey never had the intent to steal the cigarettes. In support of this argument, Richey points to the testimony of his wife and friend about his good character, his own denials and Brookshire’s failure to consider them, and the acquittal in the municipal court criminal proceedings.

These factors are not probative of probable cause at the time of the event, or lack thereof. See Akin, 661 S.W.2d at 920; Reed, 240 S.W. at 348. The test is not whether, in actuality, Richey was innocent, but whether Farris had reasonable grounds from the facts known to him at the time to believe that Richey was guilty. Akin, 661 S.W.2d at 920. The Supreme Court stated:

Events subsequent to the action ... and legal proceedings may tend to show whether the action of [the complainant] turned out to be correct or incorrect, but is [sic] not material to the beliefs and motives at the time the proceedings were institut-ed_ It is the events prior to the institution of the proceedings which must be examined, and only those events, to determine if the defendants had probable cause to act.

Akin, 661 S.W.2d at 920. Even an acquittal is not evidence of a lack of probable cause. Fisher v. Beach, 671 S.W.2d 63, 66 (Tex. App.—Dallas 1984, no writ); see also, Parker, 463 S.W.2d at 600.

The material time frame for determination of probable cause ended when the offense of theft was completed. When each element of a crime has occurred, disregarding any subsequent events, the offense is complete. Barnes v. State, 824 S.W.2d 560, 562 (Tex.Cr.App.1991) (en banc); see e.g., Barnes v. State, 513 S.W.2d 850, 851 (Tex.Cr. App.1974) (taking was complete when appellant took possession and control of automobile even though he had not driven it away).

In the instant case, it would appear that the events bearing on probable cause were complete when Richey first went through the check-out procedure and failed to pay for the cigarettes. Subsequent events which may tend to show lack of intent on Richey’s part is no evidence of lack of probable cause. No cases have been cited by Richey supporting his contention that Brook-shire should have investigated Richey’s denial of intent before signing the complaint, or should have dropped the charges after having received Richey’s explanation in the letter by his lawyer. Once objective acts themselves justify a reasonable belief that a party had the intent to commit a crime, the complaining party does not have an obligation to confront the plaintiff and do further investigation into the mens rea or other possible defenses. Coniglio, 756 S.W.2d at 747; Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 629 (Tex.App.—Houston [1st Dist.] 1984, writ refd n.r.e.). The complaining party has only the duty to state the objective facts known to him and does not himself have to investigate the state of mind or motive of the alleged perpetrator. Thomas v. Cisneros, 596 S.W.2d 313 (Tex.Civ.App.—Austin 1980, writ refd n.r.e.). It appears from the record that Richey was acquitted by the municipal court jury because he did not intend to shoplift, not because there was a lack of probable cause.

We therefore hold there was an absence of evidence showing a lack of probable cause, a vital element in this case. We further hold, from the record, that the evidence is so overwhelming to the contrary that probable cause was established as a matter of law. Point of error number one is sustained.

In view of our disposition of point one, we do not reach the remaining points of error. The judgment of the trial court is therefore reversed and judgment is rendered that Appellee take nothing.

1 . At Super 1 Food Stores, the customers sack their own groceries.

2 . Farris testified that 1 in 40 shoplifting detentions result in violent confrontations. Farris was experienced in detaining suspected shoplifters and had encountered violent suspects in the past. To discourage such violence, it is Brookshire's policy to try to have more than one employee stop a shoplifter.