Kroger Texas Ltd. Partnership v. Suberu

• Decision Date: 05 May 2006
• Docket Number: No. 03-0913.,03-0913.
• Citation: 216 S.W.3d 788
• Parties: KROGER TEXAS LIMITED PARTNERSHIP and Robert Moody, Petitioners, v. Theresa SUBERU, Respondent.
• Court: Texas Supreme Court

216 S.W.3d 788

KROGER TEXAS LIMITED PARTNERSHIP and Robert Moody, Petitioners, v. Theresa SUBERU, Respondent.

No. 03-0913.

Supreme Court of Texas.

Argued November 9, 2004.

Decided May 5, 2006.

Rehearing Denied September 22, 2006.

Donna C. Peavler, Uloth & Peavler, LLP, Dallas, Amber L. Slayton, Frisco, for Petitioners.

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

P. Michael Jung, Strasburger & Price, L.L.P., Dallas, for Amicus Curiae Arkoma Basin Exploration Company.

Chief Justice JEFFERSON delivered the opinion of the Court, in which Justice HECHT, Justice O'NEILL, Justice WAINWRIGHT, Justice BRISTER, Justice GREEN, and Justice WILLETT joined.

Theresa Suberu sued Kroger Texas Limited Partnership and assistant store manager Robert Moody (collectively, Kroger) for malicious prosecution and intentional infliction of emotional distress after she was acquitted on misdemeanor theft charges arising from an alleged shoplifting incident. The jury returned a verdict in Suberu's favor on both claims, and the trial court signed a judgment in conformity with the verdict. The court of appeals affirmed. Kroger argues that the evidence is legally insufficient to support liability under each claim, and we agree. Accordingly, we reverse the court of appeals' judgment and render judgment for Kroger.

I Background

On the evening of March 1, 1999, Theresa Suberu went to a Kroger grocery store in Garland to purchase medication. Karrah Parkey, Kroger's pharmacy technician, recognized Suberu as a prior customer, assumed she had come to pick up medicine for her husband, Michael, and placed his medicine on the counter. Suberu uses cash for all transactions and did not have enough in her purse to pay for both her medicine and Michael's. Therefore, she told Parkey she would retrieve money from her vehicle and would return momentarily.

Suberu was leaving the store when Kellie Wier, the front-end manager, yelled "Stop!" According to Wier, Suberu was pushing a grocery cart full of unsacked goods. Suberu, however, testified that she has never used a cart to shop for groceries and did not have one that evening. Wier reached Suberu in the foyer, where the two had a brief quarrel. Suberu testified that Wier said, "Those two people who just left, you are with them," and "You are going to jail for a long time." Wier, however, denied making those statements. She claims Suberu became hostile when Wier asked to see a receipt, and that Suberu kept shouting, "You're crazy!" Suberu testified that she was annoyed because Wier would not listen to her explanation for leaving the store.

Major Belton, another Kroger employee, was bagging groceries when Wier yelled for Suberu to stop. Belton testified that he looked up and saw Suberu pushing a cart. He watched as Wier questioned Suberu in the foyer, and, when Wier called him over to take the cart, he noticed that it contained mostly unsacked groceries. Robert Moody, the assistant manager, arrived and discussed the occurrence with Suberu and Wier. Moody asked Suberu if she had a receipt, and she replied "No." Belton then wheeled the cart to register three, where Matt Helwig was working as a checker. Helwig testified that he, too, saw Suberu pushing the cart out of the store. Moody and Wier escorted Suberu to an office, where Moody directed Wier to call the police.

Police officers arrived ten minutes after receiving Wier's call. Moody explained the events and filled out a shoplifting incident report. Meanwhile, Wier took the cart from Helwig's register and scanned the unsacked groceries. Moody stapled to his report a printed list of the scanned items, which totaled $261. While sitting in the office, Suberu explained that she had been at the pharmacy and was going outside to get cash from her vehicle. Despite these pleas, neither the officers nor any Kroger employee checked with the pharmacy.¹ The officers arrested Suberu and walked her out in handcuffs.

Suberu testified that she felt humiliated and has been traumatized as a result of the ordeal. Her husband, Michael, said she was "in a state of shock" when he picked her up at the jail four hours after her arrest. Suberu could not sleep that night, and was unable to cook, do laundry, and shop for groceries for several months. At trial, Michael said he and Suberu were "still working through it."

After a jury acquitted her on misdemeanor theft charges, Suberu filed the present suit, alleging malicious prosecution and intentional infliction of emotional distress. The trial court rendered judgment on the jury's verdict, which found in Suberu's favor on both claims and awarded $500 in actual damages for expenses in defending the prosecution, $28,000 for past and future mental anguish, and $50,500 in exemplary damages based on the malicious prosecution claim. The jury awarded no exemplary damages for intentional infliction of emotional distress. The court of appeals affirmed. 113 S.W.3d 588. We granted Kroger's petition for review. 47 Tex. Sup.Ct. J. 1197 (Sept. 13, 2004).

II Malicious Prosecution

This Court has long recognized a cause of action for those subjected unjustifiably to criminal proceedings, but has also made clear that the cause of action must sometimes yield to society's greater interest in encouraging citizens to report crimes, real or perceived.² The elements necessary to prevail on a malicious prosecution claim reflect this balance.³ Thus, the plaintiff must prove not only that the defendant commenced criminal proceedings against her and she is innocent of the crime charged, but also that the defendant lacked probable cause and harbored malice toward her. These latter elements guard against a jury's natural inclination to punish those who, through error but not malevolence, commence criminal proceedings against a person who is ultimately exonerated.⁴ The probable cause element "asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997) (citing Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984)). Courts must presume that the defendant acted reasonably and had probable cause to initiate criminal proceedings. Id. To rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. Id. at 518.

In the court of appeals, Kroger challenged the legal sufficiency of the evidence to support the second, fourth, fifth, and sixth elements of Suberu's claim,⁵ and her award for mental anguish and exemplary damages. 113 S.W.3d 588, 596-601. The court resolved all issues against Kroger. Id. at 605. In upholding the jury's finding on probable cause, the court cited Suberu's testimony that she was in the store for a few minutes to obtain a prescription, left to get money from her car, and never had a cart. Id. at 598. The court reasoned that it was the province of the jury to assess credibility, and the jury apparently found that Wier never saw Suberu with a cart. Id. at 598-99. For the reasons considered below, the evidence favorable to Suberu is legally insufficient to rebut the presumption that Kroger acted reasonably and with probable cause. As this conclusion is dispositive, we do not reach Kroger's remaining challenges to malicious prosecution liability and exemplary damages.

A Standard of Review

In reviewing a verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A challenge to the legal sufficiency of evidence will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla. Id. at 810 (citing Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)). Evidence does not exceed a scintilla if it is "`so weak as to do no more than create a mere surmise or suspicion'" that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

B Application

Suberu points to the following evidence as supporting a finding that Kroger lacked probable cause:

1. Kroger's failure to check Suberu's explanation with the pharmacy technician before initiating criminal proceedings;

2. Inconsistencies in Karrah Parkey's testimony regarding whether she saw Suberu with a cart; and

3. Suberu's testimony that she did not have a cart.

Starting with the first item, it is well settled that a private citizen has no duty to investigate a suspect's alibi or explanation before reporting a crime. Richey, 952 S.W.2d at 518 (citing Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 627 (Tex. App. — Houston [1st Dist.] 1984, writ ref'd n.r.e.)). If the acts or omissions necessary to constitute a crime reasonably appear to have been completed, a complainant's failure to investigate does not negate probable cause. Id. Thus, the fact that no one investigated Suberu's explanation is not evidence that probable cause was lacking.

The second item is irrelevant to whether Kroger had probable cause, because none of the Kroger employees spoke to Karrah Parkey before Moody initiated criminal proceedings. Parkey's credibility does not affect whether Kroger, at the time it called the police, reasonably believed Suberu was guilty of shoplifting. Accordingly, this evidence must be disregarded.

Suberu relies primarily on the third item—her testimony that she did not have a cart. In contrast to the criminal case, however, here the question is not whether Suberu had a cart, but...