Kroger Texas Ltd. Partnership v. Suberu

• Decision Date: 18 August 2003
• Docket Number: No. 05-02-00818-CV.,05-02-00818-CV.
• Citation: 113 S.W.3d 588
• Parties: KROGER TEXAS LIMITED PARTNERSHIP and Robert Moody, Appellants, v. Theresa SUBERU, Appellee.
• Court: Texas Court of Appeals

113 S.W.3d 588

KROGER TEXAS LIMITED PARTNERSHIP and Robert Moody, Appellants, v. Theresa SUBERU, Appellee.

No. 05-02-00818-CV.

Court of Appeals of Texas, Dallas.

August 18, 2003.

Donna C. Peavler, Amber Leah Slayton, Uloth & Peavler, L.L.P., Dallas, for Appellants.

Thomas B. Cowart, Law Office of Windle Turley, P.C., Thomas J. Stutz, Turley & Stutz, Dallas, for Appellee.

Before Justices MORRIS, WHITTINGTON, and FRANCIS.

OPINION

Opinion By Justice FRANCIS.

Theresa Suberu was leaving a Kroger grocery store when an employee stopped her and accused her of attempting to steal a basket of groceries. A jury ultimately acquitted Suberu of the shoplifting charge, and Suberu sued Kroger Texas Limited Partnership and assistant store manager Robert Moody (collectively "Kroger") for malicious prosecution and intentional infliction of emotional distress. The jury found in Suberu's favor on both claims and awarded her actual and exemplary damages. The trial court rendered judgment in accordance with the jury's verdict, and Kroger appealed.

In seven issues, appellants complain about the legal and factual sufficiency of the evidence to support the jury's findings on liability and damages, evidentiary rulings, and jury charge error. We resolve all issues against appellants and affirm the trial court's judgment.

Factual Background

Suberu testified she went in a Kroger grocery store in Garland to pick up her prescription and went directly to the pharmacy. Pharmacy technician Karrah Parkey recognized Suberu, thought she was there to pick up her husband's prescription, and obtained that medication. Suberu knew her prescription cost about $50, but she did not know the cost of her husband's and asked Parkey for the amount. After Parkey gave her a "rough estimate," Suberu said she was going to her car and would be "right back." Suberu estimated she was at the pharmacy counter two to three minutes.

As Suberu approached the exit doors leading to the store's foyer, she heard someone yell "stop." Suberu looked back and saw a female Kroger employee, identified as front end manager Kelli Weir, walking quickly to the door. Suberu stopped to "make way" for Weir whose pace was quickening as she approached the door. Weir stopped in front of Suberu and said, "You are with them." Suberu, confused, looked to see who Weir was talking about. Weir then said, "Those two people that just left, you are with them." Suberu saw two Caucasian women walking in front of her, but Weir did not stop them. Suberu explained to Weir she was alone in the store, had come from the pharmacy, and was headed to her car to get more money. Weir "kind of held" Suberu, and the two women began yelling at each other. After a couple of minutes, a second store employee, sacker Major Belton, approached. Weir told him to get Moody.

As Suberu and Weir moved back into the store, Suberu explained to Weir that she had just arrived at the store to pick up a prescription and urged Weir to check her story with the pharmacy. When Moody approached, Weir told him that she "caught [Suberu] shoplifting." Again, Suberu explained why she was in the store and urged Moody to check her story with the pharmacy. Suberu, Weir, and Moody went to the office, which was located next to the pharmacy, where she continued to plead with them to check her story. As Weir and Moody left the office, Suberu said Weir threatened to send Suberu to jail "for a very long time." Suberu said she was crying and shaking and "couldn't believe what was happening."

When a police officer entered the office, Suberu initially "felt a bit of relief" because she thought the officer would confirm her story. Instead, the officer told her she had been accused of shoplifting. Moody came back with a list of items that Suberu purportedly tried to steal and told the police Kroger wanted to prosecute. The police handcuffed Suberu, led her through the store, and took her to jail. Suberu was embarrassed, humiliated, and ashamed. She maintained at trial that she did not have a grocery cart that day because she was not shopping and said she never saw the basket of groceries that Weir accused her of trying to steal. She later explained that Weir may have "pushed something out of the way" as they reentered the store.

In contrast to Suberu's testimony, three Kroger witnesses, all employees at the time of the incident, testified that they saw Suberu attempting to leave the store with a cart of unpaid groceries. Weir described the night of the incident as "very busy." She first noticed Suberu because she was blocking traffic. Weir said Suberu had a basket and "kept staring" at her. A couple of minutes later, Weir saw Suberu leaving the store with the basket. Suspicious that only a portion of the groceries in the basket had been sacked, Weir "calmly" walked after Suberu, stopped her in the foyer, and asked for a receipt. When Suberu could not produce a receipt, Weir asked her to come back in the store. Weir called for Belton and checker Matt Helwig to assist her.

During the incident, Weir said Suberu repeatedly called her "crazy," but Weir denied ever raising her voice to Suberu or yelling. She also denied threatening to have Suberu jailed for a long time. Weir said she was "not sure" whether Suberu told her that she had been in the pharmacy. Weir told the jury she clearly saw Suberu pushing the basket and that Suberu never denied the basket was hers. Weir said at least two other customers were in front of Suberu as she was leaving the store but she did not know whether they had grocery carts.

Belton, who was sacking groceries, said he first saw Suberu in the pharmacy area with her hands on a grocery cart. Some of the groceries were sacked, and some were not. A couple of minutes later, Weir yelled at him as she was running to the door to prevent Suberu from leaving the store with the cart. Belton went to assist Weir. Contrary to Weir, Belton said Suberu denied that the basket was hers.

Kroger also offered Helwig's deposition testimony. Helwig, who was scanning groceries, testified he first saw Suberu when she entered he store. He next saw Suberu walking out of the pharmacy. A minute later, he heard Weir yell, "Stop her." According to Helwig, Suberu had a basket and no other person was in the vicinity.

Legal and Factual Sufficiency

In issues one, two, and five, Kroger contends the evidence is legally and factually insufficient to support the jury's answers to liability and actual damages questions. A party who challenges the legal sufficiency of the evidence to support an issue upon which it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)). When reviewing a no evidence point, we consider only the evidence supporting the finding and disregard all evidence to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). If there is any evidence of probative force to support the jury's finding, the no evidence issue must be overruled and the finding upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997).

When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Holmes, 62 S.W.3d at 329. In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding and will set aside the verdict only if the evidence supporting the jury finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In making this review this Court is not a fact finder, and we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.-Dallas 2000, pet. denied). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Eureste v. Comm'n for Lawyer Discipline, 76 S.W.3d 184, 195 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

A. Malicious Prosecution

In its first issue, Kroger argues the evidence is legally and factually insufficient to support the jury's finding that it maliciously prosecuted Suberu. We begin by addressing a novel premise underlying Kroger's sufficiency challenge and its briefing of this issue. Kroger asserts this Court, when reviewing the evidence for legal or factual sufficiency, may not consider Suberu's testimony because it was not corroborated by other evidence. In other words, Kroger asserts that in a malicious prosecution case, a plaintiff cannot prevail if the only evidence she presents is her own. As support, Kroger relies on an opinion from the El Paso Court of Appeals, Digby v. Texas Bank, 943 S.W.2d 914, 922 (Tex.App.-El Paso 1997, pet. denied). Even if Digby can be given as broad an interpretation as Kroger suggests, we cannot agree with Kroger.

Although Kroger urges this Court to disregard evidence Kroger believes is not credible, in a jury trial, it is the jury that determines credibility issues and the weight to be given to any particular piece of evidence. While we recognize that actions for malicious prosecution are not favored in the law, such a statement is "far too vague to serve as an analytical tool." See Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 291 (Tex.1994). If the elements of malicious prosecution are proved, liability is established. Id. In reviewing the evidence, we must keep in mind that "[e]ven a small departure from the exact prerequisites...