Higgins v. Wal-Mart Stores, Inc., WAL-MART

• Decision Date: 24 July 1987
• Docket Number: WAL-MART
• Parties: Leonard A. HIGGINS, Jr. v.STORES, INC., and H. David Clark. 86-31.
• Court: Alabama Supreme Court

Page 766

512 So.2d 766

Leonard A. HIGGINS, Jr. v. WAL-MART STORES, INC., and H. David Clark.

86-31.

Supreme Court of Alabama.

July 24, 1987.

Joseph L. Dean, Jr., of Herndon & Dean, Opelika, for appellant.

H.E. Nix, Jr., and Alex L. Holtsford, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees.

BEATTY, Justice.

Appeal by Leonard A. Higgins, plaintiff, from a summary judgment for the defendants, Wal-Mart Stores, Inc., and H. David Clark, and from the denial of consent to file a second amended complaint, in plaintiff's action based upon allegations of malicious prosecution, abuse of process, and false arrest. We reverse and remand.

I. The Summary Judgment.

The trial court's order on summary judgment disclosed that court's consideration of the following material:

"All discovery, affidavit of Leonard A. Higgins, deposition of Leonard A. Higgins, deposition of H. David Clark, deposition of Wal-Mart Stores, Inc., affidavit of Annette Hardy with attachments, affidavit of Ronald Stokes with attachments, the handwritten statement of H. David Clark, the deposition of Dexter Wilson, the deposition of Greg McCoy, answers to interrogatories filed by the plaintiff, the affidavit of H. David Clark, the case action summaries of State of Alabama vs. Leonard Albert Higgins, the State of Alabama vs. Dexter Norman Wilson, and the State of Alabama vs. Greg McCoy and a certified copy of the Grand Jury indictment of Leonard Albert Higgins.

"Further, by agreement of the parties made during the arguments on the motion for summary judgment, the Court has considered the trial transcript from the case of State of Alabama vs. Leonard A. Higgins."

Plaintiff's complaint stated causes of action against Wal-Mart and Clark in malicious prosecution, abuse of process, and false arrest.

Summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Kutack v. Winn-Dixie Louisiana, Inc., 411 So.2d 137 (Ala.1982). Thus, the trial court's task was to test the elements of each cause of action against the material before it to determine whether any genuine issues of material fact existed.

The elements of malicious prosecution are: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in 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 the result of the action or prosecution complained of. Evans v. Alabama Professional Health Consultants, Inc., 474 So.2d 86 (Ala.1985), citing Turner v. J. Blach & Sons, 242 Ala. 127, 129, 5 So.2d 93, 94 (1941).

The elements of an action for abuse of process are: (1) malice, (2) the existence of an ulterior purpose, (3) an act in the use of process not proper in the regular prosecution of the proceedings, Tapscott v. Fowler, 437 So.2d 116 (Ala.1983), and (4) want of probable cause. Tarver v. Household Finance Corp., 291 Ala. 25, 26, 277 So.2d 330, 333-34 (1973).

Similarly, in a cause of action for false arrest, a plaintiff must prove that the defendant caused him to be arrested without probable cause. As pointed out in Brinegar v. United States, 338 U.S. 160 at 175, 69 S.Ct. 1302 at 1310, 93 L.Ed. 1879 (1949):

"In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."

Thus, for a detention to be valid, the officer must reasonably, and in good faith, suspect the individual detained of being involved in some form of criminality. Fennell v. State, 51 Ala.App. 23, 282 So.2d 373, cert. denied, 291 Ala. 778, 282 So.2d 379 (1973). Reasonable ground for belief of guilt, or probable cause, "exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Fennell, 51 Ala.App. at 29, 282 So.2d at 378.

As applied in malicious prosecution actions, probable cause is "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty." Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So.2d 514, 521 (1969). And, as stated in S.S. Kresge Co. v. Ruby, 348 So.2d 484, 488 (Ala.1977):

"The question in an action for malicious prosecution arising from a criminal charge is whether the defendant, at the time he or she instituted the prosecution, had probable cause to believe that the accused was guilty." (Emphasis added.)

Notwithstanding these rubrical principles, the existence or non-existence of proximate cause is a jury question "if the facts or any necessary particular fact on the issue of probable cause is in dispute." Key v. Dozier, 252 Ala. 631, 634, 42 So.2d 254 (1949), and cases cited therein. See also National Security Fire & Casualty Co. v. Bowen, 447 So.2d 133 (Ala.1983).

The affidavit of H. David Clark was executed on February 1, 1986, after the plaintiff's action was filed. The material assertions of that affidavit follow:

"2. I was working as a security guard for Wal-Mart Stores, Inc., at its Auburn store on or about March 5, 1984.

"3. On that occasion, I was walking by the makeup section of the store when I observed a buggy being pushed by two males, one of whom was subsequently identified as Leonard A. Higgins, Jr. There was a large amount of merchandise in this buggy. Before I had walked very far, the buggy and the two males came by me having already checked out. I was suspicious as to the inordinately small amount of time it took for them to check out and also observed them making suspicious movements as they left the store. They were looking side to side, around at the cashiers, and behind them.

"4. The buggy was pushed out by Mr. Higgins. After Mr. Higgins and the other male got outside, I sent a clerk out and requested that she look at the receipts and then ask them to come back into the store. When they got back into the store, the second male lagged behind and played like he was on the telephone. I knew that he was not because I picked up and did not hear anyone. I began questioning Mr. Higgins and the other male abut the incident. During this questioning, Mr. Higgins gave several answers which I later determined to be inconsistent statements. For instance, he advised that he did not know the Wal-Mart employee, Greg McCoy, who was working the cash register. It later turned out that he did. Mr. McCoy also gave several inconsistent statements when I questioned him."

Clark's extensive deposition established that he observed Leonard Higgins and Dexter Wilson in the pet department of the Wal-Mart store as he was making his rounds a few minutes before the incident in question. When Clark next noticed them, Wilson was standing at the electronics department looking at a camera with a store employee. Higgins was standing in an aisle in the same department looking at a portable telephone. According to Clark, Higgins placed the telephone in a merchandise cart that also contained a large bag of Purina Dog Chow and a mop. A few seconds intervened before Clark observed the two again when he checked the toy aisle near the register. Greg McCoy had replaced the electronics department employee and was talking to Wilson about the camera. As Clark, in plain clothes, walked by them, Higgins pushed the cart forward as McCoy was ringing up an item on the register. Clark did not look at the register or at the individuals when McCoy actually rang up the transaction and handed over the sales receipt. He walked down the aisle, and, he said, about 15 or 20 seconds later, he was standing at the cosmetics counter, about 10 to 15 feet from and at an angle to the register, when Wilson and Higgins walked by him. He continued:

"A. As they passed by, it--dawned on me that they had a--a grocery--a shopping cart full of merchandise and that their time at the register was not--not more than 15 or 20 seconds. And I knew from past experience of check-outs that that type of--that length of time you couldn't get a bag of merchandise--a--a complete shopping cart full of merchandise rung up. I felt in my mind that those--that something at that time was wrong; that it took them too short of time to get that merchandise rung up, put in a bag, stapled, put back in the buggy."

Clark said he then observed both Higgins and Wilson, directly behind the buggy and side by side, walking toward the front of the store, looking at the registers and looking behind them:

"Q. Okay. So, they're walking along; they're looking from side to side. What else did you notice?

"A. Just the manner in which they were--they were looking. They, in my opinion, did not appear to be looking at merchandise. They--what--did what I believed to be looking for people who were noticing them. And they got--

"Q. What gave you that idea?

"A. Just the manner of their--of their movements. They had already completed a transaction, and they were--they were moving very slowly and what I would term cautiously down the aisles.

"Q. They had a 50-pound sack of dog food in there, didn't they?

"A. It was in the buggy. There was no chance--

"Q. Buggy, I mean.

"A. --of it falling out.

"Q. But I mean, in--and you say there was other merchandise in the cart?

"A. Shopping bags. Certainly the merchandise--the--shopping cart was not full, if that's what you're implying.

"Q. Sir?

"A. It was not completely full, overflowing to the top.

"...

"Q. Ok...