95-1147 La.App. 3 Cir. 3/6/96, Thomas v. Busby

• Decision Date: 06 March 1996
• Citation: 670 So.2d 603
• Parties: 95-1147 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 603

670 So.2d 603

95-1147 La.App. 3 Cir. 3/6/96

Robert C. THOMAS, Plaintiff-Appellee, v. Rodney BUSBY and Wal-Mart Stores, Inc., et al., Defendants-Appellants.

No. 95-1147.

Court of Appeal of Louisiana Third Circuit.

March 6, 1996.

On appeal from the Tenth Judicial District Court, Parish of Natchitoches; John B. Whitaker, District Judge, presiding.

Otis Edwin Dunahoe, Jr., for Robert C. Thomas.

James Dey Kirk, Alexandria, for Rodney Busby and Wal-Mart Stores, Inc.

Before PETERS, AMY and SULLIVAN, JJ.

[95-1147 La.App. 3 Cir. 1] PETERS, Judge.

Robert C. Thomas brought this action to recover damages for defamation, the cost of three bags of potting soil, and treble damages and attorney fees under the Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401 et seq. Named as defendants are Wal-Mart Stores, Inc. and two Wal-Mart employees, Rodney Busby and Kelly Pearson. The defendants answered the action and reconvened for attorney fees and defense costs, contending that Thomas' claims under Title 51 was groundless, brought in bad faith, and brought for the purpose of harassment. The trial court rendered judgment in favor of Thomas against the defendants in the amount of $25,019.13, representing $25,000.00 in general damages and $19.13 for the cost of the potting soil. Thomas' claim for attorney fees and treble damages was rejected as was the defendants' reconventional demand.

The defendants have appealed contending that the trial court erred in finding [95-1147 La.App. 3 Cir. 2] that Thomas proved the elements of defamation; in failing to consider Thomas' comparative fault in causing a scene and in publicizing the incident; in awarding $25,000.00 in general damages; and in failing to award them relief under their reconventional demand. Thomas has answered this appeal, asserting that the trial court erred in not awarding attorney fees and damages pursuant to Title 51.

DISCUSSION OF THE RECORD

In May of 1994, Thomas purchased four bags of potting soil from the Wal-Mart store in Natchitoches, Louisiana. At the time he purchased the potting soil, Barbra Sutfin was the Wal-Mart employee who handled the transaction. He used only one of the bags and decided later the same day to return the three unused bags for a refund. At that time, the Wal-Mart gardening center was located outside the store itself. Thomas parked his vehicle on the west side of the gardening center and approached the cash register location in the gardening center to speak to a Wal-Mart representative.

When he attempted to return the potting soil, Ms. Sutfin was at lunch and Ms. Pearson was on duty. Thomas did not have his receipt or the potting soil with him when he initially entered the gardening center. He told Ms. Pearson that he had bought the four bags of potting soil earlier in the day, that he had used only one bag, that he had lost his receipt, and that he would like to return the other three bags for a refund. Ms. Pearson told Thomas that he would have to bring the potting soil inside.

According to Ms. Pearson, Thomas was dressed in an old T-shirt and some faded shorts and appeared unshaven. She described him as "just kind of scruffy." She thought that he appeared nervous, and she observed him looking at different prices on the different stacks of dirt. She did not see his vehicle and became [95-1147 La.App. 3 Cir. 3] suspicious. Ms. Pearson then went inside of the store and got the attention of another Wal-Mart employee, Mary Owens. Ms. Pearson asked Ms. Owens to watch Thomas until she could find a store manager.

According to Ms. Owens, Ms. Pearson directed her attention to Thomas specifically and informed her that she believed Thomas had taken some potting soil from one of their pallets. Ms. Pearson informed Ms. Owens that she was going to get Mr. Busby, the assistant manager. Ms. Owens began to observe Thomas and saw him standing at the back of his vehicle with some potting soil in a store buggy.

Sherrie Cotton was working at the Wal-Mart service desk at this time. She testified that as Thomas entered the store, she heard a "501 code" being announced over the store public address system. According to Ms. Cotton, a 501 code is the code announcing the presence of a shoplifter. She did not realize that the code was directed to Thomas. Wal-Mart's refund policy is that if a customer has no receipt, a refund may still be given if the customer has proper identification, if the merchandise is under $25.00, and if the customer has made less than three no-receipt returns within six months. Thomas approached Ms. Cotton for a refund and presented his driver's license for identification. The amount of the refund requested was $19.13, and Wal-Mart's records did not reflect that Thomas had made three no-receipt returns within the previous six months. Ms. Cotton was in the process of giving Thomas his refund when Busby and Nanette LaCaze, a Wal-Mart support team manager at the time, arrived at the service desk. Busby ordered Ms. Cotton not to give the refund.

What transpired is in dispute. According to Thomas, he asked Busby if he was serious and Busby said, "I sure am serious." Thomas testified that Busby said, "[W]e've got two people that saw you take it off the inventory outside and bring it in [95-1147 La.App. 3 Cir. 4] here without paying for it," or words to that effect. Ms. LaCaze and Busby denied that Busby made this statement. Busby testified that he told Thomas that "the two ladies that were on duty at that time did not remember waiting on him and that [he] needed to see his receipt." Busby testified that Thomas was never accused of stealing or theft. Rather, Busby claimed he exercised his management discretion to deny the refund because there were suspicious circumstances. According to Ms. LaCaze, the only words that Busby used were "no refund." Ms. Cotton testified that she did not hear Busby make any statements to Thomas about why he was not being refunded his money. According to Thomas, there were several customers in line right behind him.

Thomas, an attorney, pulled out his business card and made a statement to the effect that they had just bought themselves a lawsuit. Busby, Ms. Cotton, and Ms. LaCaze testified that Thomas was loud, and Ms. Cotton and Ms. LaCaze indicated that Thomas used profanity. Thomas was not detained or arrested, and the police were not called.

Thomas then returned to the gardening center to find Ms. Pearson. Busby was paged. According to Ms. Pearson, Thomas came running out of the store cursing, screaming, waiving his arms around, and wanting to know who had gone inside and pointed him out. Thomas left the store.

Thomas returned to Wal-Mart after Ms. Sutfin returned from her lunch break. Ms. Sutfin remembered selling the potting soil to Thomas. The register tape showed that four bags of potting soil had been purchased. Thomas did not receive a refund or the potting soil he had attempted to return.

[95-1147 La.App. 3 Cir. 5] OPINION

Defamation

The defendants first contend that the trial court erred in finding that Thomas proved the elements of a claim for defamation. The elements of defamation are: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Crooms v. Lafayette Parish Gov't, 628 So.2d 1224 (La.App. 3 Cir.1993).

The defendants argue that the trial court erred in crediting Thomas' testimony, as it is disputed by Busby and every other witness who testified at trial. We first note that whether defamation has been proven is principally a factual analysis and our review is governed by the manifest error standard. When factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard requires great deference to the trier of fact's findings. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where documents or objective evidence so contradict the witness' story or the story itself is so internally inconsistent or implausible on its face that a reasonable trier of fact would not credit the witness' story, the court of appeal may find manifest error, even in a finding purportedly based upon a credibility determination. Id. However, absent such factors, where a trier of fact's findings are based on its decision to credit the testimony of one of two or more witnesses, those findings can virtually never be manifestly erroneous or clearly wrong. Id.

The defendants contend that no defamatory words were used. However, the trial court found that a 501 code, or shoplifter code, was announced over the public address system and that in close proximity thereto, Busby approached the service desk and advised Ms. Cotton not to make a refund on the potting soil. Also, the trial court chose to credit Thomas' testimony as to what occurred in the conversation after [95-1147 La.App. 3 Cir. 6] Busby arrived at the service desk. Specifically, the trial court concluded that when Thomas asked Busby why the refund was denied, Busby advised him that two employees had seen him remove the merchandise from the pallet outside without paying for it. We find no manifest error in the trial court's decision to credit the testimony of Thomas in this regard.

The defendants, citing Sassone v. Elder, 626 So.2d 345 (La.1993), assert that even assuming that Busby used the words that Thomas claims he used, those words set forth nondefamatory "facts" on which the opinion was based and are therefore not defamatory. However, Sassone addressed the issue in the context of defamation by innuendo. In the instant case, the trial court found that the words imputed a crime; this is not a case of innuendo. Although the words "thief" or "shoplifter" may not have been used, the imputation of criminal conduct was clear under the circumstances. Since the defendants imputed criminal conduct to Thomas, the words were defamatory per se. See Crooms, 628 So.2d 1224. Thus, we reject the defendants' arguments in this regard.

The defendants...