Dillard Dept. Stores, Inc. v. Silva

• Decision Date: 13 May 2003
• Docket Number: No. 06-02-00041-CV.,06-02-00041-CV.
• Citation: 106 S.W.3d 789
• Parties: DILLARD DEPARTMENT STORES, INC., Appellant, v. Lyndon SILVA, Appellee.
• Court: Texas Court of Appeals

Page 789

106 S.W.3d 789

DILLARD DEPARTMENT STORES, INC., Appellant, v. Lyndon SILVA, Appellee.

No. 06-02-00041-CV.

Court of Appeals of Texas, Texarkana.

Submitted February 19, 2003.

Decided May 13, 2003.

Rehearing Overruled June 10, 2003.

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Brock C. Akers, Neal D. Kieval, Phillips & Akers, PC, Houston, for appellant.

Don D. Becker, Carroll & Becker, Houston, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Dillard Department Stores, Inc. accused Lyndon Silva of shoplifting from its Town and Country Mall location in Houston. Silva was tried in criminal court for theft charges stemming from this incident and was found not guilty. After his acquittal, Silva brought a civil action against Dillard, alleging false imprisonment, malicious prosecution, intentional infliction of emotional distress, and negligence. A jury found Dillard liable for all the allegations brought by Silva, except malicious prosecution, and awarded Silva past and future damages of $10,124.01 and $3,000.00, respectively, and punitive damages of $50,000.00. Dillard contends the trial court erred in denying its motion for judgment notwithstanding the verdict or, alternatively, its motion for new trial, because there was no evidence or factually insufficient evidence to support the jury's findings of false imprisonment, intentional infliction of emotional distress, or negligence. Dillard also contends the trial court erred in denying these motions because there was no evidence or factually insufficient evidence to support the jury's actual and punitive damage awards.

Silva was a hairstylist and testified that, while working at his place of employment he received three shirts as a gift from a customer who has since returned to her native country. He explained that, because he and his roommate liked to dress alike, two of the three shirts were the same. Silva further testified he had his picture taken with the shirts at the salon where he worked. This picture was shown to the jury.

On June 12, 1997, Silva went to the Town and Country Mall in Houston, where one of his friends was opening a new hair salon. Silva also took the three shirts, because he and his roommate had decided to exchange them. After touring the new salon, Silva went to his car, retrieved the three shirts, and went to Dillard. Silva testified the customer who had given him the shirts had also given him the receipt with the gift, in case he wanted to exchange them.

Silva first attempted to return the shirts at the cosmetics/accessories counter, but was told he needed to exchange them at another department. While at the cosmetics/accessories counter, Silva purchased a back brush; the receipt indicated this purchase was made at 1:06 p.m. At 1:27 p.m., Silva purchased a Tommy Hilfiger shirt, making him eligible to purchase a Tommy Hilfiger travel bag being used as a promotional item. Another receipt indicated he purchased this travel bag at 1:31 p.m.

Silva testified he began to experience a headache and asked directions to the water fountain so he could take some medicine. According to Silva, a Dillard security guard, Kevin Rivera, stopped him while Silva was on his way to the water fountain. Rivera was an off-duty Houston police officer who was in uniform, with his "gun on [his] hip." Silva testified Rivera accused him of theft and placed him on the floor and handcuffed him. Silva said the officer emptied Silva's shopping bag onto the floor. Silva told the officer he had receipts for the items, including the three shirts. When the receipt for the shirts was not found in the bag, Silva said he begged the officer to go outside and check his car for the receipt. The officer instead took Silva, while handcuffed, up the escalator to an empty office. Silva said there were a lot of people watching. He also testified that no one asked him for an explanation and that, while in the office, the officer and a woman made fun of him. He stated that, when the city police arrived to take him into custody, Rivera again placed him on the floor with his knee in his back, and exchanged handcuffs with the city police. Silva said there were onlookers lined up to watch when he was escorted back downstairs and taken to the waiting police car.

Silva later produced a receipt for three shirts purchased at Dillard June 2, 1997. All three shirts were the same style and price as the three Silva was accused of stealing. However, two of the SKU numbers did not match exactly those written on Dillard's internal report about the incident.¹ Silva's explanations of these discrepancies between the SKU numbers included a difference in sizes (delineated by the end numbers of the SKU numbers), a sales clerk scanning one item multiple times instead of scanning the individual tags on similar items, and a misidentification of the merchandise.

The testimony of a Dillard's sales associate, Karen Wallace, was very different from Silva's. Wallace testified that, around 1:30 or 1:45 p.m. on the day in question, she noticed Silva and felt he was watching her more than shopping. She also noticed he had a large bag with him. Wallace later watched Silva take five or six items into a dressing room. When Silva came out of the dressing room, his bag appeared to be bigger and Wallace thought he did not return as many items to the rack as he had taken into the dressing room. On inspection, Wallace found two empty hangers and a nogo (anti-theft device) in the dressing room. After talking to the assistant manager, Wallace called security.

Rivera testified Silva was visibly nervous and shaking when he approached him. Rivera said he emptied the contents of Silva's bag on a nearby shelf or counter and denied emptying it on the floor. Rivera said Silva offered no excuse for not having a receipt for the three shirts. Rivera testified he placed Silva in handcuffs and conducted a pat-down search. He then took Silva to the store office to further investigate. Disputing Silva's testimony there were a lot of people watching, Rivera described the store as a "ghost town." Rivera testified Wallace was able to describe the items in the bag. Rivera talked to the district attorney's office, which agreed to press charges. After an exchange of handcuffs, Silva was turned over to the custody of the city police. Rivera denied forcing Silva to the floor at any time.

An appeal from the denial of a motion for directed verdict is in essence a challenge to the legal sufficiency of the evidence. Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307, 309 (Tex.App.-Tyler 2001, pet. denied). In determining whether there is no evidence of probative force to support a jury's finding, all the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id.

When considering a factual sufficiency challenge to a jury's verdict, we must consider and weigh all the evidence, not just that which supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407. When we review a punitive damage award, we must detail the relevant evidence in our opinion, explaining why that evidence either supports or does not support the punitive damage award. TEX. CIV. PRAC. & REM.CODE ANN. § 41.013 (Vernon 1997). Factors to be considered when determining the amount of an award of exemplary damages include (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant. TEX. CIV. PRAC. & REM.CODE ANN. § 41.011 (Vernon 1997).

As its first point of error, Dillard contends the trial court erred in denying its motion for judgment notwithstanding the verdict, or alternatively, its motion for new trial, because there was no evidence, or only factually insufficient evidence, to support the jury's finding of false imprisonment. To prevail under a false imprisonment claim, a plaintiff must prove (1) willful detention, (2) without consent, and (3) without authority of law. Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985).

Dillard contends the third element is missing in this case. Dillard bases this contention on the shopkeeper's privilege created by Texas Civil Practice and Remedies Code Section 124.001. See TEX. CIV. PRAC. & REM.CODE ANN. § 124.001 (Vernon 1997). The shopkeeper's privilege expressly grants an employee the authority of law to detain a customer to investigate the ownership of property, so long as (1) the employee has a reasonable belief the customer has stolen or is attempting to steal store merchandise, (2) the detention was for a reasonable amount of time, and (3) the detention was in a reasonable manner. Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex.1998). Dillard asserts there was no evidence Silva's detention was unreasonable.

In Resendez, the plaintiff sued Wal-Mart for negligence, false imprisonment, intentional infliction of emotional distress, and malicious prosecution. Id. The jury found no liability based on the...