Hodges v. Gibson Products Co.

• Citation: 811 P.2d 151
• Decision Date: 03 April 1991
• Docket Number: No. 20929,20929
• Parties: Shauna F. HODGES, Plaintiff and Appellee, v. GIBSON PRODUCTS COMPANY, dba Gibson's Discount Center, a Utah corporation, and Chad Crosgrove, an individual, Defendants and Appellants.
• Court: Supreme Court of Utah

Page 151

811 P.2d 151

Shauna F. HODGES, Plaintiff and Appellee, v. GIBSON PRODUCTS COMPANY, dba Gibson's Discount Center, a Utah corporation, and Chad Crosgrove, an individual, Defendants and Appellants.

No. 20929.

Supreme Court of Utah.

April 3, 1991.

F. Robert Bayle, Andrea C. Alcabes, Salt Lake City, for Gibson Products Co.

Chad Crosgrove, Thomas R. Karrenberg, Salt Lake City, for Shauna F. Hodges.

STEWART, Justice:

Gibson Products Company and Chad Crosgrove, manager of Gibson's West Valley store in Salt Lake County, appeal a judgment holding them liable for malicious prosecution of a former Gibson employee, Shauna F. Hodges. Gibson also appeals the judgment holding it liable to Hodges for wrongful termination of her employment.

I. FACTS

Because Gibson and Crosgrove attack the sufficiency of the evidence, we rely on the facts most favorable to the verdict.

As store manager, Crosgrove closed out the cash registers at the end of every business day and placed the checks, cash, and cash register tapes from each register in separate money bags marked with the number of the register from which they were taken. After the store closed, Crosgrove placed the money bags in a safe near the service desk on the first floor for overnight keeping, and the next morning, he retrieved the bags from the safe and took them upstairs to a secure room where Hodges, a part-time bookkeeper, counted the receipts from each bag and checked the sum against the amount shown on the register tape for each cash register. She then recorded the total receipts from each register, entered the grand total from all registers on a daily report form, and prepared a bank deposit to be made by Crosgrove.

On the morning of September 4, 1981, Hodges went to the secure room, where she obtained the prior day's receipts which had been placed in the money bags together with the cash register tapes. She counted the receipts, filled out the daily report, and made out a bank deposit slip. When her tasks were completed, she went home. Company policy called for Crosgrove to deposit the receipts by 3 p.m. that day. However, around 4 p.m. Glen Murray, the assistant store manager, looked at the daily report prepared by Hodges and noticed that it showed no receipts for cash register No. 4. He checked to make sure that register No. 4 had been used the previous day and told Crosgrove of the discrepancy. After being informed of the missing money, company officials came to the store, and Crosgrove called Hodges and told her to return to the store. Crosgrove stated that when he first went to the secure room, he found part of a tape from register No. 4 in the wastebasket. Later, additional tapes, void slips from register No. 4, and torn deposit slips for Mrs. Hodges' personal bank account were found in a garbage bag. The missing checks from register No. 4 were found in the bag for register No. 2, and the empty bag for register No. 4 was found at the service desk. Crosgrove initially testified that upon returning to the secure room, he found some checks from register No. 4 in bag No. 2. Unless he had had sufficient time, however, to laboriously check the tape for register No. 2 line by line to determine which checks in bag No. 2 had not been taken at that register, he must have had previous knowledge about the misplacement of the checks. Crosgrove also testified, somewhat inconsistently, that he could not identify which checks came from register No. 4 until after a corporate accountant performed an audit. The audit revealed that the checks that should have been in the bag for register No. 4 had been put in the bag for register No. 2 and an amount of cash that equaled those checks had been withdrawn.

When Hodges returned to the store on September 4, she was confronted by Crosgrove and charged with stealing the money. She denied receiving the bag for the receipts from register No. 4 and steadfastly denied stealing the money. She insisted then, and consistently thereafter, that she had not received the money sack for register No. 4 from Crosgrove.

Several days later, Gibson management called Hodges to another meeting and again asked for an explanation. Once again she explained that she had not taken the money. Notwithstanding her protestation of innocence, Gibson officials stated that they would allow her to resign rather than be fired if she paid Gibson the missing amount of money. Again asserting her innocence, she declined to resign.

Gibson suspended her from work on September 8, 1981, and on September 9, 1981, Crosgrove, Ron Harris, Gibson's auditor, and Bob Cornett, Gibson's general manager, went to the police and made an accusation of theft against Hodges. Although Crosgrove had had access to all the money bags containing register receipts during the night of September 3 and the morning of September 4, before they were given to Hodges, and was apparently the only other person to have had any such access to the bags, Gibson did not investigate the possibility that Crosgrove might have stolen the money and instead pointed the finger of blame at Hodges. Because Gibson had not at that time discovered that Crosgrove was in fact stealing both money and merchandise from Gibson, Crosgrove did not, of course, inform the police or other Gibson officials that he had been stealing substantial sums from Gibson during a period which included the month of September 1981. Hodges was arrested, handcuffed, and charged with theft. Following a preliminary hearing, she was bound over for a trial scheduled for May 12, 1982.

Before Hodges' trial could be held, a Gibson company audit discovered that Crosgrove had embezzled some $9,000 in cash and goods during a period that included the loss attributed to Hodges. Crosgrove's scheme of embezzlement utilized a method known as "lagging" bank deposits by which he retained a day's cash receipts, refrained from making a bank deposit, and then made up the deposit out of subsequent receipts. Gibson did not charge Crosgrove with theft, despite his confession and the large amount taken; rather, he was permitted to resign on the condition that he repay Gibson. On March 14, 1982, seven weeks before Hodges' scheduled trial date, Crosgrove resigned.

Gibson officials did not inform the prosecuting attorney in Hodges' case of Crosgrove's thefts until the eve of the scheduled trial, almost two months after the company became aware of Crosgrove's thefts. In light of Crosgrove's admitted thefts and the fact that he was Gibson's chief witness against Hodges, the prosecutor immediately dismissed the theft charge against Hodges. In May 1982, after eight months on suspension, and after the formal dismissal of the criminal charges against her, Gibson fired Hodges for the stated reason that she "failed to follow proper procedures."

Hodges sued both Gibson and Crosgrove for malicious prosecution and intentional infliction of emotional distress and Gibson alone for wrongful termination. Gibson counterclaimed for conversion. The jury found Gibson and Crosgrove liable for malicious prosecution, but not liable for intentional infliction of emotional distress, and Gibson liable for wrongful termination. The jury apparently found that Hodges suffered significant psychological trauma from the accusation and initiation of the criminal charge, was unable to find other employment as a result, and suffered a loss of wages during her suspension and after her discharge. The jury returned a verdict against Gibson for $70,000 in compensatory damages and $7,000 in punitive damages and a verdict against Crosgrove for $10,000 in compensatory damages and $1,000 in punitive damages. The jury found Hodges not liable on Gibson's counterclaim for conversion.

On this appeal, Gibson and Crosgrove contend that the evidence was insufficient to support the elements of a malicious prosecution action. In addition, Gibson contends that the jury instructions were erroneous with respect to the malicious prosecution claim, the wrongful termination claim, and damages.

II. MALICIOUS PROSECUTION

The trial court instructed the jury that Hodges had the burden of proving the following four elements of the tort of malicious prosecution: (1) defendants initiated or procured the initiation of criminal proceedings against an innocent plaintiff; ¹ (2) defendants did not have probable cause to initiate the prosecution; (3) defendants initiated the proceedings primarily for a purpose other than that of bringing an offender to justice; and (4) the proceedings terminated in favor of the accused. See Kennedy v. Burbidge, 54 Utah 497, 500-01, 183 P. 325, 326 (Utah 1919); Callioux v. Progressive Ins. Co., 745 P.2d 838, 843 (Utah Ct.App.1987); Restatement (Second) of Torts § 653 (1977); see also W. Keeton, Prosser and Keeton on the Law of Torts § 119, at 871 (5th ed. 1984).

In deciding Gibson's and Crosgrove's contentions that the evidence was insufficient for the jury to find against them on the malicious prosecution claims, we defer to the jury and evaluate the evidence in a light favorable to the verdict. We accept the evidentiary inferences that tend to support the verdict rather than contrary inferences that support the appellants' version of the facts, even if we might have judged those inferences differently had we been deciding the matter in the first instance, and not as an appellate court. See Cambelt Int'l Corp. v. Dalton, 745 P.2d 1239, 1242 (Utah 1987). When the testimony of witnesses is in conflict, we accept that testimony which supports the jury's verdict, unless it is inherently implausible, and ignore the evidence which does not support the verdict, even if we might think it more convincing. See Cottrell v. Grand Union Tea Co., 5 Utah 2d 187, 194, 299 P.2d 622, 626 (1956). For the appellants to overturn the jury verdict, therefore, they must set out in their briefs, with record references, all the evidence that supports the verdict, including all valid inferences to that...