Koepnick v. Sears Roebuck & Co.

• Decision Date: 16 June 1988
• Docket Number: No. 1,CA-CIV,1
• Citation: 158 Ariz. 322,762 P.2d 609
• Court: Arizona Court of Appeals
• Parties: Max KOEPNICK, Plaintiff-Appellant, Cross-Appellee, v. SEARS ROEBUCK & COMPANY, Defendant-Appellee, Cross-Appellant. 9147.

Page 609

762 P.2d 609

158 Ariz. 322

Max KOEPNICK, Plaintiff-Appellant, Cross-Appellee, v. SEARS ROEBUCK & COMPANY, Defendant-Appellee, Cross-Appellant.

No. 1 CA-CIV 9147.

Court of Appeals of Arizona Division 1, Department D.

June 16, 1988.

Review Denied Nov. 1, 1988.

[158 Ariz. 324] William J. Monahan, P.C. by William J. Monahan, Thomas J. Quarelli, Paul G. Ulrich, P.C. by Paul G. Ulrich, Phoenix, for plaintiff-appellant, cross-appellee.

Gust, Rosenfeld, Divelbess & Henderson by Fred Cole, Roger W. Perry, Phoenix, for defendant-appellee, cross-appellant.

OPINION

FROEB, Presiding Judge.

There are two primary issues raised on appeal and one primary issue raised on cross-appeal. The issues presented on appeal are: (1) whether the trial court erred in granting Sears Roebuck and Company's (Sears) motion for new trial on Max Koepnick's (Koepnick) false arrest claim; and (2) whether the trial court erred in granting Sears' motion for judgment notwithstanding the verdict (judgment n.o.v.) on Koepnick's trespass to chattel claim. The issue raised on cross-appeal is whether the trial court erred in denying Sears' motion for judgment n.o.v. on Koepnick's false arrest claim.

FACTS

Koepnick was stopped in the Fiesta Mall parking lot by Sears security guards Lessard and Pollack on December 6, 1982, at approximately 6:15 p.m. Lessard and Pollack suspected Koepnick of shoplifting a wrench and therefore detained him for approximately 15 minutes until the Mesa police arrived. Upon arrival of the police, Koepnick and a police officer became involved in an altercation in which Koepnick was injured. The police officer handcuffed Koepnick, placed a call for a backup, and began investigating the shoplifting allegations. Upon investigation it was discovered that Koepnick had receipts for the wrench and for all the Sears merchandise he had been carrying. Additionally, the store clerk who sold the wrench to Koepnick was located. He verified the sale and informed Lessard that he had put the wrench in a small bag, stapled it shut, and then placed that bag into a large bag containing Koepnick's other purchases. The small bag was not among the items in Koepnick's possession in the security room. To determine whether a second wrench was involved, the police and Lessard searched Koepnick's truck which was in the mall parking lot. No stolen items were found. Having completed their investigation, the police cited Koepnick for disorderly conduct and released him. The entire detention lasted approximately 45 minutes.

Koepnick sued Sears ¹ for false arrest, assault, trespass to chattel, invasion of privacy and malicious prosecution. The trial court directed a verdict in favor of Sears on all charges except false arrest and trespass to chattel. After a trial on these claims, a jury awarded Koepnick $25,000 compensatory damages and $500,000 punitive damages for false arrest, and $100 compensatory damages and $25,000 punitive damages for trespass to chattel. Sears timely moved for judgment n.o.v. and alternatively for a new trial. The trial court denied Sears' motion for judgment n.o.v. but granted the motion for new trial on the false arrest claim. The court granted Sears' motion for judgment n.o.v. on the trespass to chattel charge. This appeal and cross-appeal followed.

Koepnick appeals, challenging the trial court's order granting Sears a new trial on his false arrest claim and judgment n.o.v. on his trespass to chattel claim. Sears cross-appeals from the judgment in favor of Koepnick and from the denial of its motion for judgment n.o.v. on Koepnick's false arrest claim.

We find no reversible error and therefore affirm the trial court's order granting a new trial on the false arrest claim and judgment n.o.v. on the trespass to chattel claim.

FALSE ARREST

A. Koepnick's Appeal

In its order, the trial court stated:

Defendant Sears' motion for new trial on plaintiff's claim for false arrest is granted.

....

In this case, the court erred in submitting the issue of probable cause to the jury. The stop by the Sears security agents in the parking lot was the start of plaintiff's detention by Sears; therefore, the probable cause to detain the plaintiff must have arisen prior to the time the security guards stopped Mr. Koepnick. There were no issues of fact surrounding Steve Lessard prior to stopping Mr. Koepnick in the parking lot.

As a matter of law, there was probable cause to detain the plaintiff. It was, therefore, error to instruct the jury on reasonable cause. The jury was entitled to determine reasonable time and manner of detention; however, with the erroneous jury instructions, the jury's verdict could have been based upon a finding of the jury of no reasonable cause.

Koepnick argues that the trial court abused its discretion in ruling that reasonable cause (considered the same as "probable cause"; see discussion hereafter) existed as a matter of law because there were issues of fact that were properly submitted to the jury. Koepnick further contends that the order should be reversed because it failed to set forth evidence in support of the finding of reasonable cause and because there were no other errors upon which to justify granting a new trial. Before addressing these issues, we must first consider the parties' contradictory assertions with respect to the applicable standard of review.

1. Standard of Review

An order granting a new trial is subject to a more liberal standard of review than an order denying one. See, e.g., Melcher v. Melcher, 137 Ariz. 210, 669 P.2d 987 (App.1983). A reviewing court will not set aside a trial court's grant of new trial absent a clear showing of abuse of discretion. Adroit Supply Co. v. Electric Mutual Liability Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975). However, the trial court's discretion is legal and not arbitrary and must be exercised according to reason and law. State v. McMinn, 88 Ariz. 261, 262, 355 P.2d 900, 901, (1960); Cano v Neill, 12 Ariz.App. 562, 567, 473 P.2d 487, 492 (1970).

2. Rule 59(m), Arizona Rules of Civil Procedure

Rule 59(m) provides that "[n]o order granting a new trial shall be made and entered unless the order specifies with particularity the ground or grounds on which the new trial is granted." The purpose of rule 59(m) is to inform the parties and the appellate court of the grounds for the trial court's decision in order to delineate the issues on appeal. Estabrook v. J.C. Penney Co., 105 Ariz. 302, 304, 464 P.2d 325, 327 (1970); Yoo Thun Lim v. Crespin, 100 Ariz. 80, 83, 411 P.2d 809, 811 (1966). Where the trial court's order fails to satisfy rule 59(m), the burden shifts to the appellee to convince the appellate court that the trial court did not err in granting a new trial. Reeves v. Markle, 119 Ariz. 159, 164, 570 P.2d 1382, 1387 (1978); State v. Burton, 20 Ariz.App. 491, 495, 514 P.2d 244, 248 (1973). Koepnick argues that the trial court's order does not satisfy rule 59(m) in that it fails to state in detail how the ground asserted as the basis for granting a new trial operated against the party who lost at trial. Accordingly, Koepnick asserts that Sears has the burden to show that the trial court did not abuse its discretion. We disagree.

The above quoted order states that the court was granting a new trial because it believed there were no issues of fact relative to security guard Lessard having reasonable cause to stop Koepnick for suspected shoplifting. The court stated that because there was reasonable cause as a matter of law, it was error to submit that issue to the jury. The court concluded that the only factual issues which should have been submitted to the jury involved whether the detention was conducted in a reasonable manner and for a reasonable time. The court further concluded that the jury's decision against Sears could have been improperly based on a finding of no reasonable cause.

We find this order sufficiently specific to apprise the parties and this court of the issues on appeal. As this court stated in Heaton v. Waters, 8 Ariz.App. 256, 445 P.2d 458 (1968):

We do not believe that our Supreme Court intends to require the trial judge to render a written opinion setting forth his rationale for granting a new trial motion or to undertake a lengthy review of the facts. Rule 59(m) is designed to serve a practical purpose and should receive a practical construction.

8 Ariz.App. at 259-60, 445 P.2d at 461-62. We find that the order complies with rule 59(m) and there is no shift of the burden of persuasion to Sears.

3. The Merchant's Privilege Under A.R.S. § 13-1805

A.R.S. § 13-1805 grants merchants a privilege to detain suspected shoplifters on their premises under certain circumstances. A merchant may assert the privilege as a defense to a civil suit for false arrest, false or unlawful imprisonment, or wrongful detention. However, the privilege applies only when the merchant can establish that reasonable cause existed to believe the suspect was shoplifting and that the detention was conducted in a reasonable manner for a reasonable time for the purpose of questioning the suspect or summoning a law enforcement officer. Gortarez v. Smitty's Super Valu, Inc., 140 Ariz. 97, 103, 680 P.2d 807, 813 (1984). (The decision also equates the statutory term "reasonable cause" with the term "probable cause." We have used the term "reasonable cause" in this opinion as it is used in A.R.S. § 13-1805.)

Reasonable cause is a question of law for the court where the facts or inferences from them are not in dispute. Where there is a dispute, the issue becomes a mixed question of law and fact, and it is for the jury to determine the disputed facts. The trial judge must make the initial determination whether there are disputed facts or conflicting inferences to be drawn from the facts. Gortarez, 140 Ariz. at 104, 680 P.2d at 814.

The trial court determined that it had erred in submitting the issue of reasonable cause to the jury...