Kmart Corp. v. Perdue

• Decision Date: 13 June 1997
• Citation: 708 So.2d 106
• Parties: KMART CORPORATION and Doug Sharp v. Sonja PERDUE. KMART CORPORATION and Doug Sharp v. Deborah CAMERON. 1950845, 1950846.
• Court: Alabama Supreme Court

Page 106

708 So.2d 106

KMART CORPORATION and Doug Sharp v.Sonja PERDUE.

KMART CORPORATION and Doug Sharp v.Deborah CAMERON.

1950845, 1950846.

Supreme Court of Alabama.

June 13, 1997.

As Modified on Denial of Rehearing

Dec. 19, 1997.

Walter R. Byars, Peck Fox, and Debra T. Lewis Loard of Steiner, Crum & Baker, Montgomery; and Mark Boardman of Boardman & Tyra, Birmingham, for appellants.

James R. Morgan, Birmingham; Daniel B. Feldman of Hammond, Feldman & Lehane, P.C., Birmingham; and Mark D. McKnight, Birmingham, for appellees.

BUTTS, Justice.

Deborah Cameron and Sonja Perdue brought separate actions against Kmart Corporation and its agent/employee Doug Sharp, alleging claims of malicious prosecution and false arrest.Perdue also included claims alleging conversion and assault and battery.Each complaint alleged that Sharp, acting as a loss control manager of a Kmart store in Bessemer, had detained the plaintiff on suspicion of shoplifting and had done so without probable cause and that the plaintiff was wrongfully arrested on the charge.Perdue alleged that Sharp used undue force in detaining her on suspicion of the charge.Perdue's complaint also alleged that a Kmart employee stole a watch belonging to Perdue, while she and Cameron were being detained.The cases were consolidated for trial.The jury returned a general verdict for Cameron, awarding damages of $2 million, and a general verdict for Perdue, likewise awarding her $2 million; the trial court then entered judgments on these verdicts.

Kmart Corporation and Sharp filed motions challenging the verdict and, in the alternative, seeking a remittitur of the damages awards.In these motions, they alleged, among many other things, that the trial court had erred in submitting general verdict forms to the jury.On the 91st day from the filing of these motions, the trial court entered an order purporting to grant the motion for a new trial, holding that it had erred in denying the defendants' objection to the general verdict forms.However, because the motion was not ruled on within 90 days, the motion was deemed to have been denied.Thus, the court's order entered on the 91st day was a nullity.SeeRule 59.1, Ala. R. Civ. P. Kmart and Sharp appealed from the judgments.

The defendants first argue that the plaintiffs failed to establish the elements of their claim of malicious prosecution and that this claim was therefore a "bad count" and should not have been submitted to the jury.In an action alleging malicious prosecution, the plaintiff must prove (1) that there was a judicial proceeding initiated by the present defendant; (2) that it was initiated without probable cause; (3) that it was initiated with malice on the part of the present defendant; (4) that that judicial proceeding was terminated in favor of the present plaintiff; and (5) that the present plaintiff suffered damage from the prosecution of that earlier action.Alabama Power Co. v. Neighbors, 402 So.2d 958(Ala.1981).

The record reveals the following: At some point before March 23, 1994, Roger Hurt, the regional loss control supervisor for Kmart, contacted the control loss officers in all Birmingham area Kmart stores and alerted them that two females, Deborah Cameron and Sonja Perdue, had been repeatedly bringing merchandise into Kmart stores without a receipt and requesting cash refunds.Hurt told Doug Sharp, the loss control supervisor for the Bessemer Kmart store, that the two women had visited most of the Kmart stores in the Birmingham area, bringing in expensive items of merchandise, without sales receipts, and that Kmart had sustained thousands of dollars in losses from supplying the two women with cash "refunds" for the merchandise.He stated that, based on this pattern of activity, he believed the two were repeatedly shoplifting merchandise from Kmart and then returning it for cash.Hurt instructed all the area Kmart loss control managers, including Sharp, to watch for the two women and to closely monitor their activities to determine whether they were conducting such a scheme.

Sharp duly informed the employees at the Bessemer Kmart store to watch for Cameron and Perdue and to alert him if they came into the store.On the evening of March 24, after Sharp had gone home for the night, Cameron and Perdue approached the service desk, with Cameron standing behind Perdue.Perdue presented a shower curtain to the service desk employee, Teresa White, and asked to exchange it.Perdue did not have a receipt for the shower curtain; she stated that she had bought the shower curtain at a different Kmart store, but she could not say with certainty which Kmart store she had bought it from.When White asked Perdue for identification, White recognized that Perdue was one of the women Sharp had been instructed to watch for.She alerted the store manager, who immediately telephoned Sharp and informed him that Perdue was in the store.

After about five minutes, White told Perdue that she could not exchange the shower curtain without a receipt.Although White said she thought Perdue had left the store after being refused the exchange, she could not later say whether Perdue had re-entered the store through the "Garden Center" entrance, and she could not say how long Perdue had been in the store before she approached the service counter to attempt the exchange.At some point, Perdue left the Kmart store and went into a store next door, while Cameron remained in the Kmart store.Cameron was also carrying merchandise, but she did not ask for a cash refund for that merchandise; instead, after Perdue was refused a cash refund, Cameron put the package she had been carrying into a shopping cart and began to walk around the store.

Sharp subsequently arrived and viewed a store security videotape supplied to him by the loss control officer on duty in the store.Sharp then went next door to the store where Perdue had gone and asked to speak with her.According to Perdue, Sharp held her arm as he led her back into the Kmart store.The evidence conflicts as to who took Perdue to a loss control room in the Kmart store; however, after she was detained, Sharp returned to the main part of the store to observe Cameron.According to Sharp, Cameron lingered in the drapery department, then took a set of drapes and put them into her purse.She then began pushing her shopping cart through the store, while Sharp followed her.At the front of the store, Cameron pushed her shopping cart up to a closed check-out line, left the cart, and took her purse to leave.Sharp then apprehended her; however, it is disputed as to whether he did so while Cameron was still inside the store.

Cameron and Perdue were detained in separate control loss rooms, both with Kmart personnel, and Sharp recovered two sets of draperies.There is evidence that each woman accused the other of "making her steal this merchandise," and both Sharp and the store manager testified that Cameron confessed to taking the draperies.The Bessemer police then arrived and arrested the two women on charges of third-degree theft.Perdue pleaded guilty on this charge, but Cameron pleaded not guilty and was tried in the Bessemer Municipal Court.During this proceeding, Sharp testified that a loss control officer, Odora Beckwood, had assisted him in detaining the two women, and Beckwood corroborated this.Cameron was convicted, and the two women were sentenced to 30 days in jail.

Cameron and Perdue appealed to the Jefferson Circuit Court, Bessemer Division.Before the trial de novo in the circuit court, and after her employment with Kmart had been terminated for unrelated reasons, Beckwood recanted her testimony.At trial the evidence conflicted as to whether Sharp personally had seen Perdue stealing merchandise or had merely viewed this on a store security tape before he apprehended her at a store next to the Kmart store.The two women were acquitted in the circuit court, and they then filed against Kmart and Sharp the actions that led to the judgments now here on appeal.

The defendants argue that, while some of the evidence conflicts, the plaintiffs did not present sufficient evidence of the elements of malicious prosecution to justify sending that...