Brookshire Grocery Co. v. Richey

• Decision Date: 25 April 1995
• Docket Number: No. 12-93-00013-CV,12-93-00013-CV
• Citation: 899 S.W.2d 331
• Parties: BROOKSHIRE GROCERY CO. d/b/a Super 1 Food Store, Appellant, v. Kelley RICHEY, Appellee.
• Court: Texas Court of Appeals

Page 331

899 S.W.2d 331

BROOKSHIRE GROCERY CO. d/b/a Super 1 Food Store, Appellant, v. Kelley RICHEY, Appellee.

No. 12-93-00013-CV.

Court of Appeals of Texas,

Tyler.

April 25, 1995.

Rehearing Overruled June 14, 1995.

Molly H. Anderson, Dennis Black, Mike Hatchell, Tyler, for appellant.

Gregory Grajezyk, Longview, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

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 sure 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 "Yes" 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.Civ.App.--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 ref'd 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; (3) 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...