Croft v. Grand Casino Tunica, Inc.

• Decision Date: 11 January 2005
• Docket Number: No. 2003-CA-00638-COA.,2003-CA-00638-COA.
• Citation: 910 So.2d 66
• Parties: Melvin CROFT Appellant, v. GRAND CASINO TUNICA, INC., Christopher Smith and John Does 1-5, Appellees.
• Court: Mississippi Supreme Court

910 So.2d 66

Melvin CROFT Appellant, v. GRAND CASINO TUNICA, INC., Christopher Smith and John Does 1-5, Appellees.

No. 2003-CA-00638-COA.

Court of Appeals of Mississippi.

January 11, 2005.

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W. Ellis Pittman, Clarksdale, attorney for appellant.

Macey Lynd Edmondson, John H. Dunbar, Walter Alan Davis, Oxford, attorneys for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

KING, C.J., for the Court.

¶ 1. Melvin Croft, a former employee of Grand Casino Tunica, Inc, appeals from the granting of summary judgment by the Circuit Court of Tunica County. He was discharged from employment and arrested after criminal charges were brought against him by the Casino over the taking of a $100 token. After the charges were dismissed, Croft filed suit against the Grand Casino Tunica, Inc., its security investigator, Christopher Smith and John Does 1-5 claiming malicious prosecution, false arrest, abuse of process, civil conspiracy, menace, assault and battery and intentional infliction of emotional distress. The circuit court granted the defendants' motion for summary judgment, Croft perfected this appeal raising the following issues:

I. WHETHER THE TUNICA COUNTY CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DISMISSING PLAINTIFF'S CLAIMS OF FALSE ARREST, ABUSE OF PROCESS, AND MALICIOUS PROSECUTION ON SUMMARY JUDGMENT WHEN THERE WERE SEVERAL GENUINE DISPUTED ISSUES OF MATERIAL FACT, SUFFICIENT TO GO TO THE JURY FOR DETERMINATION AS TO WHETHER DEFENDANTS LACKED PROBABLE CAUSE TO WHICH A REASONABLE PERSON

WOULD HAVE SUSPECTED THAT MELVIN HAD ENGAGED IN CRIMINAL ACTIVITY

II. WHETHER THE TUNICA COUNTY CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DISMISSING PLAINTIFF'S CLAIMS OF MALICIOUS PROSECUTION ON SUMMARY JUDGMENT GROUNDS WHEN THERE WERE SEVERAL GENUINE DISPUTED ISSUES OF MATERIAL FACT, SUFFICIENT TO GO TO THE JURY FOR DETERMINATION, AS TO WHETHER DEFENDANTS ACTED WITH MALICE IN BRINGING CRIMINAL CHARGES AGAINST MELVIN FOR PETIT LARCENY WHEN MELVIN HAD NOT COMMITTED ANY CRIMINAL ACTIVITY AND REFUSED TO ADMIT TO ANY CRIMINALITY

III. WHETHER THE TUNICA COUNTY CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DISMISSING PLAINTIFF'S CLAIMS OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND MENACE ON SUMMARY JUDGMENT GROUNDS WHEN THERE WERE SEVERAL GENUINE DISPUTES ON MATERIAL ISSUES OF FACT AS TO WHETHER DEFENDANT'S CONDUCT OF HAVING MELVIN FALSELY ARRESTED ON CHARGES OF PETIT LARCENY WHEN DEFENDANTS ALL ALONG LACKED PROBABLE CAUSE TO SUSPECT MELVIN OF ENGAGING IN ANY CRIMINALITY WAS CONDUCT SO OUTRAGEOUS, INTENTIONAL AND MALICIOUS AS TO MEET THE REQUISITE SHOWING UNDER THOSE TORTS

IV. WHETHER THE TUNICA COUNTY CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DISMISSING PLAINTIFF'S CLAIMS OF ASSAULT AND BATTERY ON SUMMARY JUDGMENT GROUNDS WHEN THERE WERE SEVERAL GENUINE DISPUTED ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANTS' CONDUCT AND THREATS OF AN ARREST OF MELVIN FOR PETIT LARCENY WAS CONDUCT THAT REASONABLY PLACED MELVIN IN IMMINENT APPREHENSION OF AN OFFENSIVE CONTACT

V. WHETHER THE TUNICA COUNTY CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DISMISSING PLAINTIFF'S CLAIMS OF CIVIL CONSPIRACY ON SUMMARY JUDGMENT GROUNDS WHEN THERE WERE SEVERAL GENUINE DISPUTED ISSUES OF MATERIAL FACT, SUFFICIENT TO GO TO THE JURY, THAT DEFENDANTS ENGAGED IN A PURPOSE OF HAVING MELVIN UNLAWFULLY ARRESTED FOR PETIT LARCENY WHEN DEFENDANTS, ALL ALONG KNEW THAT THEY LACKED PROBABLE CAUSE TO INSTITUTE THOSE CRIMINAL CHARGES AGAINST MELVIN.

VI. IF THIS COURT DETERMINES THAT DEFENDANTS WERE NOT ENTITLED TO ENTRY OF JUDGMENT AS A MATTER OF LAW, WHETHER MELVIN'S CLAIMS OF FALSE ARREST, MALICIOUS PROSECUTION, AND ABUSE OF PROCESS ARE SUBJECTED TO THE EXCLUSIVITY OF THE COMPENSATION ACT

¶ 2. Finding no error, we affirm.

STATEMENT OF THE FACTS

¶ 3. Croft worked for Grand Casino Tunica, Inc. for seven months as a member of a hard count team. It was his duty as a member of the hard count team to service the slot machines by removing the coin buckets from the machines, replacing them with empty bins and placing the bins on a cart and taking the coin buckets to the hard count room for counting. Then the same process would be used to collect paper money from another part of the machine. Coins that are placed into a slot machine by patrons fall through the machine into the bucket while paper money goes into a bill validator located on the machine's door. He worked usually with a team of eight and there were four security guards with the team to clear patrons away from the machines as they were counted and to observe the counting team members. The team members dress in jumpsuits without pockets in order to prevent theft by team members during a count.

¶ 4. On April 12, 2001 Croft reported for his shift at 4 a.m. and was given his assignment as part of the team and performed one count. On the second count at about 5 a.m. Croft's team was performing a bill validator drop count. A fellow team member, James McKinley, opened the slot machine door on a $100 slot machine and a $100 token fell into the tray. McKinley continued opening slot machines. When Croft came by to scan the machine, he saw the $100 token in the machine's tray. Instead of collecting the $100 token for the count or alerting the security guard who was standing nearby, Croft did nothing to advise Casino personnel about the token. Croft contends that he thought the coin belonged to no one. He then walked over to a patron and told him that there was a coin in one of the machines. The patron retrieved the $100 token and cashed it in. After Croft finished the hard count, he sought out the patron to make sure he had understood that the $100 token was in the bin of a machine. The patron thanked Croft for the information and shook Croft's hand. In the handshake the patron passed a $20 bill to Croft. Croft then gave the $20 bill to co-worker McKinley.

¶ 5. At the time this incident was occurring, Casino security surveillance team members became suspicious. Senior Internal Auditor Jana Daniels, who was on the Casino floor observing the hard count, saw Croft approach a patron and whisper something to him. She observed the patron walk to the hundred dollar slot machine and look in the tray and return to Croft and talk to him again and then return to the area of $100 slot machines and take a token from the tray and put it in his pocket. At that point Daniels called surveillance who reviewed the tape and confirmed the specifics of Croft's appropriation of the $100 token.

¶ 6. About two hours after the incident Croft was told by his supervisor that he and co-worker McKinley needed to go with security and they were escorted by two security guards to the office of Casino security investigator Chris Smith. McKinley told the investigators that when the door of the machine was opened the $100 token fell out and he told Croft about the coin. McKinley said Croft told him he was going to get it and McKinley advised him that he couldn't have the coin on him. McKinley said Croft then asked him if he could get a guest to get the token, cash it in and give him the money. McKinley gave investigator Smith a $20 bill which was folded up in a square shape which he said was given to him by Croft.

¶ 7. Croft was questioned by Smith and remained in his office for about 30 minutes. He said that during that the entire investigation while he was at the Casino he was never touched by Smith or the security guards. Croft gave a statement of his versions of the events which did not differ from what has been set out above.

¶ 8. After interviewing the witnesses and looking at the surveillance tape, Smith believed that the elements of embezzlement had been met and called the Tunica County Sheriff's Department. Davis signed an affidavit against Croft alleging petit larceny. A deputy came to the Casino, placed Croft in handcuffs and escorted him out of the Casino and to jail. Croft's employment was terminated and co-worker McKinley was suspended.

¶ 9. The petit larceny charge was later dismissed in the Justice Court after which Croft initiated this litigation.

¶ 10. Additional facts will be related during the discussion of the issues.

STANDARD OF REVIEW

¶ 11. Our standard of review regarding motions for summary judgement is well established. We review summary judgment motions de novo. Massey v. Tingle, 867 So.2d 235, 238 (¶ 6)(2004). Summary judgment is reversed only when it appears that triable issues remain when the facts are reviewed in the light most favorable to the non-moving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1997).

¶ 12. In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Development Dist., Inc., 797 So.2d 845, 847(¶ 5) (Miss.2001). The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The Court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense. Id. The burden of demonstrating that there are no genuine issues of facts between the parties is upon the moving party. Moore ex rel Moore v. Mem'l Hosp. of Gulfport and Winn-Dixie of La., Inc., 825 So.2d 658, 663 (¶ 15) (Miss.2002).

ANALYSIS

¶ 13. We will discuss each claim of action separately to test whether each should survive summary judgment.

I. The Malicious Prosecution Claim

¶ 14. The elements of the tort of malicious prosecution are: (1) the institution of a proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceedings in the plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding and (6) the suffering of injury or damage as a result of the prosecution. Condere Corp. d/b/a Fidelity Tire and Manufacturing Co. v. Moon, 880 So.2d...