Crutcher v. Wendy's of North Alabama, Inc.

• Decision Date: 07 March 2003
• Citation: 857 So.2d 82
• Parties: Davida CRUTCHER et al. v. WENDY'S OF NORTH ALABAMA, INC.
• Court: Alabama Supreme Court

857 So.2d 82

Davida CRUTCHER et al. v. WENDY'S OF NORTH ALABAMA, INC.

1011648.

Supreme Court of Alabama.

March 7, 2003.

Joe N. Lampley, Huntsville, for appellant.

Richard J.R. Raleigh, Jr., of Wilmer & Lee, P.A., Huntsville, for appellee.

HARWOOD, Justice.

On August 16, 2000, Davida Crutcher, a minor, proceeding by and through her next friends Leon Gaines and Rebecca Gaines, her grandparents, sued her former employer Wendy's of North Alabama, Inc. ("Wendy's"), a corporation owning several Wendy's fast-food restaurant franchises in north Alabama. Crutcher's complaint presented claims of false imprisonment, slander, and invasion of privacy arising out of her employment at a Wendy's restaurant in Huntsville ("the restaurant").

Wendy's filed a motion for a summary judgment, along with supporting evidentiary materials. On April 23, 2002, after other filings by the parties, the trial court entered a summary judgment in favor of Wendy's on all of Crutcher's claims.

Crutcher then filed this appeal; the trial court subsequently granted her motion to supplement and correct the record on appeal. Crutcher presents 18 issues to be considered by this Court, 17 of which essentially contend that the summary judgment must be reversed because, she says, genuine issues of material fact exist. In the eighteenth issue, Crutcher contends that the trial court's summary-judgment order was erroneous because it was prepared by counsel for Wendy's.

Our review of a summary judgment is de novo.

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003)]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997). The record shows that, at the time of the events giving rise to this case, Crutcher was 16 years old and was an employee at the restaurant. The restaurant, located at 2614 Memorial Parkway in Huntsville, was owned and operated by Wendy's. Crutcher worked part-time as a cashier. On Sunday, July 25, 1999, she began work at 11:00 a.m. at the cash register for the drive-through window. Also working the drive-through window that day was Genora Gordon, Crutcher's co-employee and her aunt. Tiffany Erskine, an assistant shift manager, was also working the 11:00 a.m. shift on that date. Her duties as assistant shift manager included counting the money from the cash registers. At approximately 2:00 p.m. that day, Erskine removed the money from the drive-through-window cash register and took it to the office and proceeded to count it.¹ After counting the money, Erskine thought that the cash register from the drive-through window was $50 short. As the assistant shift manager, it was Erskine's duty to conduct an "investigation" into the apparently missing money. She went back to the front of the restaurant to look for the money, and she asked the cashiers if there had been any "overrings"² or if anyone had been in the office or had seen the money on the desk in the office. None of the employees indicated that they knew anything about the missing money. The record shows that Crutcher, Gordon, and Erskine were the only employees who had access to the drive-through-window cash register during the 11 a.m. shift. Erskine notified the employees present that she was telephoning the police to report the missing money, which she then proceeded to do. While on the telephone with the police operator, Erskine asked what the police could do to help locate the missing money. Erskine was told by the operator that, with the employees' approval, the officers could search the employees to determine if any one of them had the missing $50. Erskine notified the police despite the fact that she knew Wendy's policy was that the police were not to be called unless there was a fire or robbery at a restaurant. Erskine testified that she was aware of that policy because she had been told by Michelle Robinson, the restaurant manager, about the circumstances under which the police were to be called to the restaurant. Erskine further testified that such policy was ordered by Clyde Newman, the president of Wendy's and a shareholder.³

After Erskine's telephone call to the police, three Huntsville police officers arrived at the restaurant. They stated that they could ask each employee if he or she would consent to a search, and if an employee said no, then that employee would not be searched. Erskine testified in her deposition that, after the police told her what they could do, she asked them to search all of the employees, including herself. Crutcher stated that Erskine also told the police officers that Crutcher, Gordon, and she were the only employees who had gone into the restaurant office that day.

The officers proceeded to conduct an investigation. They asked Gordon, in Crutcher's presence, if she would consent to being searched; Gordon refused. Crutcher initially testified in her deposition that the officers then "asked" her to go into the office to be searched. However, later in her deposition, Crutcher stated that she was "told" by the officers to go into the office to be searched. At any rate, she complied and accompanied a female officer into the office. During the course of the search, with only Crutcher and the female officer present, the officer searched under various articles of Crutcher's clothing. Crutcher was the only employee to be searched in this manner by the police. Crutcher testified that she did not say anything to the officer during the search. The record indicates that only Crutcher and Erskine were searched. Erskine testified that during her search she was ordered by the officer conducting the search to pull up her shirt, but the officer searched only under her bra. The officer also searched her socks and pockets.

While Crutcher was being searched, Gordon telephoned Crutcher's grandmother, Rebecca Gaines, who drove to the restaurant. Crutcher left the restaurant with Mrs. Gaines and never returned to work there. Crutcher's shift that day would have ended at 5:00 p.m., and various time references in the record show that Crutcher left with her grandmother before the end of her shift. Crutcher testified in her deposition that she was not fired by Wendy's and that Wendy's later requested that she return to work.

Crutcher makes the separate assertions in her initial brief to this Court that, not only was the missing $50 not found on her person, but that "[i]n fact it was later discovered that the $50 was never missing and had never been stolen" and that "[t]he $50 was never stolen. At some point, Erskine found the money." Only one citation to the record is provided for these unqualified statements, "C. 744," but that page of the record, a page from the lengthy "Plaintiff's Response to the Defendant's Motion for Summary Judgment," contains no information relating to the statements. Crutcher also further asserts in her brief that "Erskine did have the money somewhere in the store and did find the money." Her citation to the record following that statement is "C. 60," which, in turn, is a page from the brief Wendy's filed in support of its motion for a summary judgment. Again, we find nothing on that page of the record that relates in any way to Crutcher's allegation that Erskine found the missing money. We do not find anywhere in the entire record for this appeal any support for the emphatic statements Crutcher makes that the $50 was found at some point in time, much less that Erskine was the one who found it.

Erskine testified in her deposition that the missing $50 was never located. Nicole Watkins, an assistant manager who arrived at the restaurant on the day in question after Erskine had determined that the money was missing, but before the police had arrived, testified that she undertook a "recount" of not only the drive-through-window cash register, but also the front register, on the chance that Erskine could have made a mistake, but she found that the register records were "both correct." Watkins then counted the money Erskine had in the office, "and it was $50 short." When asked if the $50 was "ever later discovered," Watkins answered that it was not.

Crutcher also calls our attention to certain deposition testimony in the record, which, it appears, is actually what she is relying on in making the statements to this Court that Erskine found the missing money. First, Mrs. Gaines testified that "early Monday morning" (the incident occurred on a Sunday) she telephoned Michelle Robinson at the restaurant. According to her, Robinson said "I don't think that $50 was missing. It could have been in some change." She said, "I think it was in some change somewhere. That's what she told me about the $50. She don't think it was missing. But she...