Holguin v. Sally Beauty Supply Inc.

Citation150 N.M. 636,264 P.3d 732,2011 -NMCA- 100
Decision Date07 September 2011
Docket NumberNo. 29,624.,29,624.
PartiesPatricia HOLGUIN, Plaintiff–Appellant,v.SALLY BEAUTY SUPPLY INC. and Amanda Estrada, individually, Defendants–Appellees.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Behles Law Firm, P.C., Jennie Deden Behles, Albuquerque, NM, Eric N. Ortiz, LLC, Eric N. Ortiz, Albuquerque, NM, for Appellant.Butt, Thornton & Baehr, PC, Phillip W. Cheves, Albuquerque, NM, for Appellees.

OPINION

VIGIL, Judge.

{1} Merchants have a conditional privilege to detain a customer in a reasonable manner, for a reasonable time, to effect a recovery of the merchandise when they have probable cause to believe the customer has willfully concealed merchandise. Two questions of first impression are presented in this case: (1) whether a customer who places merchandise into a reusable, personal canvas shopping bag, without more, has “willfully concealed” merchandise; and (2) whether a statutory presumption of intent applicable to a criminal prosecution for shoplifting also applies to the merchant's conditional privilege. The district court answered both questions in the affirmative and granted Defendants summary judgment. We disagree and reverse.

BACKGROUND

{2} Plaintiff sued Sally Beauty Supply and the assistant manager (Defendants) seeking damages in a jury trial, for false imprisonment, false accusation of shoplifting, and false and malicious abuse of prosecution. Defendants answered asserting, among other defenses, that they are immune from liability under NMSA 1978, Sections 30–16–22 and 30–16–23 (1965). Plaintiff and Defendants each sought summary judgment on this defense.

{3} Plaintiff presented evidence she went to Defendants' store carrying her “eco-friendly canvas shopping tote,” a large bag which is conspicuous when used. Upon entering Defendants' store, there were no posted signs stating that shopping totes were not allowed, and she was not made aware that they were prohibited. Plaintiff picked up a can of mousse that was not exactly what she wanted and started to carry it in her tote toward the front counter to ask the cashier a question about it. As she approached the front of the store, the assistant manager approached her and asked what was in the bag. The manager told Plaintiff that once she put the hair mousse in her tote bag, she was shoplifting. The police were called, and when Plaintiff refused to sign a “no trespass” card indicating she would not return to the store, Plaintiff was arrested and charged with shoplifting, resisting, evading or obstructing an officer, and disorderly conduct.

{4} The district court concluded, “As a matter of law, Defendants had the authority to detain Plaintiff and are immune from suit pursuant to [Section] 30–16–23.” Accordingly, the district court granted summary judgment in Defendants' favor and dismissed the complaint with prejudice. Plaintiff appeals. Two of the court's findings are pertinent to this appeal: (1) when the mousse was put inside the bag, and before it was removed, the assistant manager had probable cause to believe Plaintiff was shoplifting because she took merchandise belonging to Sally's Beauty Supply and put it into her bag”; and (2) placing the mousse into the bag satisfies a statutory presumption that Plaintiff intended to shoplift, and the statutory presumption applies to a determination of whether Defendants have immunity.

{5} At oral argument, the parties agreed that the operative fact pertinent to this appeal is Plaintiff's act of placing the mousse in the shopping bag and that this Court will not consider anything which may have occurred afterward. As more fully explained below, we agree with the parties, and focus our analysis on this fact.

STANDARD OF REVIEW

{6} “Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992); see Rule 1–056(C) NMRA. We review these legal questions de novo.” Self v. United Parcel Serv., Inc., 1998–NMSC–046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Issues involving application of a statute to the facts of a case are questions of law that we review de novo. See Hise v. City of Albuquerque, 2003–NMCA–015, ¶ 8, 133 N.M. 133, 61 P.3d 842 (stating that review of the application of the law to the facts is conducted de novo).

{7} To determine whether the district court properly granted summary judgment under this standard, we discuss: (1) the elements of the conditional statutory privilege afforded merchants to detain a customer, and (2) if a statutory presumption of an intent to shoplift applies to a determination of whether the merchant has a privilege to detain a customer.

THE CONDITIONAL PRIVILEGE FOR A REASONABLE DETENTION

{8} To determine whether the district court properly granted Defendants summary judgment on grounds that their detention of Plaintiff was privileged under Section 30–16–23, we examine statutory language as it pertains to the facts of this case, the probable cause requirement of the statute, and the meaning of “willfully concealed” under the statute.

The Statute

{9} In Section 30–16–23, the Legislature has invested police officers, special officers, and merchants with a conditional privilege to detain a person free from civil or criminal liability. In its entirety, the statute provides:

If any law enforcement officer, special officer or merchant has probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it, or has willfully concealed merchandise, and that he can recover the merchandise by detaining the person or taking him into custody, the law enforcement officer, special officer or merchant may, for the purpose of attempting to affect [effect] a recovery of the merchandise, take the person into custody and detain him in a reasonable manner for a reasonable time. Such taking into custody or detention shall not subject the officer or merchant to any criminal or civil liability.

Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the crime of shoplifting. Any merchant who causes such an arrest shall not be criminally or civilly liable if he has probable cause for believing the person so arrested has committed the crime of shoplifting.

Id. (alteration in original).

{10} Preliminarily, we identify the pertinent parts of the statute that are involved in this case. First, the arguments and the district court ruling consider only whether Plaintiff “willfully concealed merchandise.” No argument is made by Plaintiff or Defendants about whether Plaintiff took possession of the mousse “with the intention of converting it without paying for it,” and the district court did not consider this part of the statute in rendering its ruling. Secondly, we are only concerned with Defendants' conduct. This case does not involve the conduct of a police officer or a “special officer” (which is not defined). Further, since the undisputed facts demonstrate that the decision to arrest Plaintiff, was made by the police and that Defendants did not “cause” Plaintiff's arrest, we do not consider the last paragraph of the statute. Finally, the parties and the district court agree that this case involves a detention, not a taking into custody.

{11} Thus, the elements of the merchant's conditional privilege as applied in this case are: (1) that Defendants had probable cause for believing that Plaintiff willfully concealed merchandise; and (2) that Defendants detained Plaintiff in a reasonable manner for a reasonable time to effect a recovery of the merchandise.

The Requirement of Probable Cause

{12} The conditional privilege given to merchants requires probable cause to justify a detention. This requirement balances the interests of the merchant, on the one hand, to protect itself from shoplifters, and the interests of the public, on the other hand, to be free from being detained without a good and sufficient cause. See Henry v. Shopper's World, 200 N.J.Super. 14, 490 A.2d 320, 322 (N.J.Super.Ct.App.Div.1985) (per curiam) (stating that the merchant's privilege statute “must be construed in a manner reasonably calculated to carry out its objective of protecting the merchant from shoplifting and safeguarding the innocent customer” and stating that a merchant may not act without cause); J.C. Penney Co. v. Cox, 246 Miss. 1, 148 So.2d 679, 684 (1963) (stating that, on the one hand, such statutes protect merchants from shoplifters and, on the other hand, they do not give merchants complete power and authority to detain, search, and accuse customers of stealing upon the mere whim of a merchant or its employees). The burden is on the merchant to demonstrate probable cause and that probable cause was present at the time the detention commenced. See Jones v. Target Corp., 341 F.Supp.2d 583, 587–88 (E.D.Va.2004) (stating that the burden is on the merchant to establish probable cause and that the probable cause determination is based on the information known to the merchant at the time of the detention under Virginia merchant immunity statute); Cox, 148 So.2d at 684 (stating that the burden of proof is on the merchant to show probable cause that a person willfully concealed unpurchased merchandise upon his person or otherwise before the merchant may question that person).

{13} The parties agree on the substance of what probable cause means. Citing Yucca Ford, Inc. v. Scarsella, 85 N.M. 89, 92, 509 P.2d 564, 567 (Ct.App.1973), Plaintiff states, “Probable cause is defined as an honest belief in the guilt of the accused based on reasonable grounds. Reasonable grounds are facts and circumstances which would warrant a prudent and cautious person in believing that the accused is guilty.” Defendants in turn quote from State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342,...

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