Kelly v. West Cash & Carry Bldg. Materials

• Decision Date: 20 October 1999
• Docket Number: No. 99-CA-0102.,99-CA-0102.
• Citation: 745 So.2d 743
• Parties: Burnetta KELLY v. WEST CASH & CARRY BUILDING MATERIALS STORE, et al.
• Court: Court of Appeal of Louisiana — District of US

745 So.2d 743

Burnetta KELLY v. WEST CASH & CARRY BUILDING MATERIALS STORE, et al.

No. 99-CA-0102.

Court of Appeal of Louisiana, Fourth Circuit.

October 20, 1999.

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Ford & Harrison, John L. Monroe, Jr., John L. Telford, Jr., Atlanta, Georgia, and Burke & Mayer, William B. Hildalgo, New Orleans, Louisiana, Counsel for Defendants-Appellees.

Ray A. Bright, New Orleans, Louisiana, Counsel for Plaintiff-Appellant.

Court composed of Judge WILLIAM H. BYRNES III, Judge MIRIAM G. WALTZER, Judge MOON LANDRIEU, Judge PATRICIA RIVET MURRAY and Judge DENNIS R. BAGNERIS, Sr.

BYRNES, Judge.

The plaintiff, Burnetta Kelly was arrested and fired from her job as assistant head cashier at West Cash & Carry Building Materials Store (West), a retail outlet, based on allegations that she assisted an unidentified man to remove merchandise from the store without payment. The charges were ultimately dropped and similar allegations were rejected by the State of Louisiana Office of Employment Security. Plaintiff filed a petition alleging false arrest and imprisonment, defamation, wrongful discharge, malicious prosecution and infliction of emotional distress. Named as defendants were plaintiffs employer, West, Jill Fourcade, Edward Knight, the store manager, Marshia Jimenez¹, Michael LaBauve², Gary Heflin³, Keith Yeager and the XYZ Insurance Company.

Pursuant to a motion for summary judgment, the plaintiffs claims were dismissed in their entirety. We affirm in part, and reverse and remand in part.

On appeal, the plaintiffs brief explicitly asserts error in the misapplying by the trial court of the "standard of qualified privilege regarding the defamatory communications made by the defendants," and in the trial court's failure to find that plaintiff had succeeded in raising genuine issues of material fact in connection with her claims of false imprisonment and intentional and/or negligent infliction of emotional distress. Implicit in plaintiffs petition and brief is the assertion of error in the trial court's failure to find in favor of the plaintiff on the issue of malicious prosecution. Plaintiffs appeal does not raise the issue of wrongful discharge. Therefore, we will treat the issue of wrongful discharge as having been abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.

West hired plaintiff as a cashier in October of 1995. Samantha Boudreaux, plaintiff's immediate supervisor at the time she was later arrested, told her that West was hiring. Shortly before she was terminated, Mr. Edward Knight, the store general manager, promoted her to the position of assistant head cashier. Early on July 2, 1996, Mr. Knight held an employee meeting at which he informed the employees that merchandise was missing and that it was suspected that an employee might have allowed a customer to leave without paying.

After the meeting, cashier Marshia Jimenez informed Mr. Knight that she witnessed a suspicious incident on June 30, 1996, when an unknown man was allowed to leave the store without a receipt because plaintiff vouched for him. Another cashier, Jill Fourcade, confirmed this to Gary Heflin, the Consumer Marketing Director.

Ms. Kelly was summoned to Mr. Knight's office later the same morning.

I. FALSE IMPRISONMENT

Plaintiff alleges that when she was summoned to Mr. Knight's office for questioning she was wrongfully detained against her will. Plaintiffs brief contends that she "was held against her will in the office ... for approximately three hours" where she was interrogated until the police came and arrested her.

The affidavit of Burnetta Kelly made the following assertions bearing on this issue:

17.

Then I was told that Mr. Knight ordered me to report to his office. Immediately, I reported to Mr. Knight's office about 10 a.m.

18.

When I reported to his office on the morning of July 2, 1996, about 10 a.m., Mr. Knight, Gary Heflin and Keith Yeager accused me of stealing a lawn mower and other merchandise from the store by helping a man on June 30, 1996.

19.

I told Mr. Knight, Gary Heflin and Keith Yeager that I did not steal any merchandise from the store on June 30, 1996 or any other time. I told Mr. Knight, Gary Heflin and Keith Yeager that I did not help anyone steal any merchandise from the store on June 30, 1996 or any other time. I told them that I did not tell Marshia Jimenez, Jill Fourcade or any other employee to allow anyone to take any merchandise out of the store on June 30, 1996 or any other time. Mr. Knight and Gary Heflin told me to confess and they would not call the police. I told them I was not confessing to anything I did not do.

20.

I was kept in Mr. Knight's office from 10 a.m. to about 1 p.m. At one point during the questioning I stood and walked near the closed door. But, Mr. Knight ordered me to sit down in the chair. I sat down and they continued to question me.

21.

When my husband arrived and came in the office, he told me that I did not have to stay there and take this. But, Mr. Knight told him that I could not leave. Mr. Knight and Gary Heflin ordered my husband to leave. My husband left the office without me.

22.

Through all of this, I was scared and felt sick to my stomach. I felt myself trembling and could not sit still. I could not understand what was happening to me. My father came in the office trying to find out what had happened. But, the police came in and arrested me.

The affidavit of Terrence L. Kelly, the plaintiff's husband, relates the same incident from his perspective:

4.

I entered the store office where Store manager, Edward Knight, and Assistant Manager Gary Heflin were holding my wife.

5.

Manager Knight and Assistant Manager Heflin ordered me to leave the room. I asked them what gave them the right to hold Burnetta. Manager Knight and Asst. Manager Heflin accused her of stealing and again ordered me to leave the room.

6.

I told Burnetta that she did not have to stay there. I said to her, get-up and lets go. Manager Knight told her the store had a right to hold her because of the theft of merchandize [sic] by her. Manager Knight told her to admit to stealing and he would allow her to leave. [Emphasis added.]

7.

Manager Gary Heflin again told me to leave. So, I left the room. Burnetta's father, Leroy Jackson, arrived on the scene and went to the office. But, Burnetta did not come out with him either. I waited for about another 1 hour before the police arrested her.

8.

During the time the store management held Burnetta in the office, Burnetta appeared frightened, her eyes were watery, she looked visibly shaken and physically ill. Burnetta looked sad like she was physically drained. Burnetta did not look like she could handle being accused of a crime and held in the room.

In her deposition, Burnetta Kelly also testified that she was interrogated in the company office. She testified that at one point in the questioning, she was left alone in the unlocked room, during which time she called her husband and mother who were not at home, but she did not attempt to leave. Next she called her mother-in-law and her brother, followed by a return call from her father. A few minutes later Mr. Knight and Mr. Heflin came back into the room. Shortly thereafter, her husband came to the room and asked what was going on. Ms. Kelly testified that Mr. Heflin asked her husband to leave. Significantly, Ms. Kelly testified that she never asked to leave the room and that the door to the room was never locked. Ms. Kelly did not state in her deposition as she did in her later affidavit that at one time she got up and was ordered to sit back down. Her deposition testimony failed to confirm her husband's affidavit statement that she was told the store had a right to hold her.

Ms. Kelly's testimony and affidavit and her husband's affidavit are significant for what they fail to say. There is no testimony or affidavit suggesting that there was any physical impediment preventing her departure, or any threat of physical force preventing Ms. Kelly's freedom of movement. In fact, Mr. Kelly's affidavit states that he told his wife that she could leave. Ms. Kelly's affidavit and testimony do not say that she felt that there was any physical impediment or threat of physical force preventing her from leaving. The plaintiff admitted that the door was not locked, and offered no evidence of actual or threatened physical restraint.

False imprisonment is the unlawful and total restraint of the liberty of the person. Crossett v. Campbell, 122 La. 659, 48 So. 141 (1908).⁴ Submission to the mere verbal direction of an employer, unaccompanied by force or by threats, does not constitute false imprisonment. Moen v. Las Vegas Intern. Hotel, Inc., 90 Nev. 176, 521 P.2d 370 (1974); Mullins v. Rinks, Inc., 27 Ohio App.2d 45, 272 N.E.2d 152 (1971); White v. Levy Brothers, Inc., 306 S.W.2d 829 (Ky.1957). And there is no false imprisonment where an employer declines to terminate an interview of his employee if no force or threat of force is used. Id. False imprisonment may not be predicated on a person's unfounded belief that he was restrained. Id. Apprehension that one might in the future lose one's job or be prosecuted for theft is not the force or the threat of force necessary to establish false imprisonment. Moen, supra. Bare words are insufficient to effect an imprisonment if the person to whom they are spoken is not deprived of freedom of action. Ford Motor Credit Co. v. Gibson, 566 S.W.2d 154 (Ky.1977); Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424 (Ky.1966).

In Dominguez v. Globe Discount City, Inc., 470 S.W.2d 919 (Tex.Civ.App.1971), the plaintiff was ordered about by a security guard, which if anything should carry a greater inference of force than would an order from one's employer. But the Dominguez court noted that there was never any physical force and that the plaintiff was never touched by the security guard. The...