Orr v. Morgan, 2016–CA–01279–COA

• Decision Date: 14 November 2017
• Docket Number: NO. 2016–CA–01279–COA,2016–CA–01279–COA
• Citation: 230 So.3d 368
• Parties: Jamie Lynn ORR, Appellant v. Mallory MORGAN, the Buckle, Inc. and Nason Stephens, Appellees
• Court: Mississippi Court of Appeals

230 So.3d 368

Jamie Lynn ORR, Appellant

v.Mallory MORGAN, the Buckle, Inc. and Nason Stephens, Appellees

NO. 2016–CA–01279–COA

Court of Appeals of Mississippi.

November 14, 2017

ATTORNEYS FOR APPELLANT: JOHN W. CHRISTOPHER, GREGORY JOHN FARIES, ERIK GREGORY FARIES

ATTORNEYS FOR APPELLEES: MARK D. MORRISON, WILLIAM CHRISTOPHER IV ISON

EN BANC.

BARNES, J., FOR THE COURT:

¶ 1. Retail-store employee Jamie Lynn Orr was charged with petit larceny for stealing her employer's iPad. After she was acquitted of the charge, Orr filed a malicious-prosecution claim against her former employer, The Buckle Inc., and the store's managers, Mallory Morgan and Nason Stephens (the Appellees). The Appellees filed a motion for summary judgment, which the Madison County Circuit Court granted. On appeal, we find there were genuine issues of material fact whether the Appellees had probable cause to institute the criminal proceedings against Orr and whether they acted with malice. Accordingly, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of July 4, 2014, Orr was working at The Buckle, along with Stephens and two other employees, Thomas Manchester and Lauren Miller. She had been employed since May 2014, and had only worked approximately eight shifts. Security footage reveals that, prior to closing, Orr was using the store's iPad at the register counter. Stephens was also present, closing out the registers, as it was closing time. Orr took the iPad to the storeroom (out of view of the security camera) and returned to the front of the store with a large purse. No iPad was visible. She talked with Stephens for several minutes about her schedule, with Orr expressing she wanted more hours. After some discussion, Orr verbally gave Stephens her two-week notice, and she walked out to the parking lot with Manchester and Stephens. Miller had already left, carrying just her keys and cell phone.

¶ 3. The following day, Morgan was unable to locate the store's iPad. After other employees searched the store and were questioned about the missing iPad, Morgan contacted the corporate office. Viewing the store's security footage, The Buckle's corporate office told Morgan to file a report with the local police. Morgan contacted Ridgeland Police Department to reported that a black iPad mini, valued at $350, was presumed stolen, along with a case, valued at $150.¹ Morgan told police that Orr was the last person seen with the iPad and that Orr had taken the iPad into the storeroom. On July 16, 2014, Stephens signed an affidavit against Orr for petit larceny, after being requested by police to do so. Orr was arrested and charged with petit larceny. On December 16, 2014, Orr was found "not guilty" of the charge.

¶ 4. Orr filed a complaint against the Appellees on January 19, 2015, alleging malicious prosecution, false arrest, false imprisonment, civil conspiracy, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.² Orr said that Morgan and Stephens acted maliciously by filing a false statement with police and an affidavit for a warrant, respectively, and Morgan's conclusion that Orr stole the iPad "was based on nothing more than unfounded suspicions and conjecture." She said that she went to the back storeroom to plug in the iPad. She also noted that her purse was open in front of Stephens during their discussion.

¶ 5. After discovery, the Appellees filed a motion for summary judgment on March 17, 2016, and the circuit court granted the motion. Aggrieved, Orr argues on appeal that there were no genuine issues of material fact as to two elements of her claim for malicious prosecution: (1) want of probable cause; and (2) malice in instituting the proceedings. She also contends that since her remaining claims were dependent on the same set of operative facts, her other claims should survive summary judgment. Therefore, she argues the court's grant of summary judgment should be reversed and the case remanded for further proceedings.

STANDARD OF REVIEW

¶ 6. We employ a de novo standard of review to a circuit court's grant or denial of a summary-judgment motion. Franklin Collection Serv. Inc., v. Collins, 206 So.3d 1282, 1288 (¶ 25) (Miss. Ct. App. 2016) (citing Ferguson v. Miss. Farm Bureau Cas. Ins., 147 So.3d 374, 377 (¶ 12) (Miss. Ct. App. 2014) ). "Summary judgment ‘shall’ be granted ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Id. (quoting M.R.C.P. 56 ). Initially, the moving party has the burden of proof "to demonstrate that there is no genuine issue as to any material fact." Id. (citing Ferguson, 147 So.3d at 377 (¶ 12) ). Then, the burden of proof shifts to the nonmovant, "who must produce specific facts that there is a genuine material issue for trial." Id."In reviewing a summary-judgment motion, the evidence will be considered ‘in the light most favorable to the nonmoving party.’ " Id.

DISCUSSION

I. Malicious Prosecution

¶ 7. Orr claims the Appellees never had a "honest belief" in her guilt or possessed reasonable grounds to accuse her of petit larceny. For Orr to maintain a suit for malicious prosecution, she is required to prove the following elements by a preponderance of the evidence:

(1) The institution or continuation of original judicial proceedings, either criminal or civil; (2) [b]y, or at the insistence of the defendants; (3) [t]he termination of such proceedings in [the] plaintiff's favor; (4) [m]alice in instituting the proceedings; (5) [w]ant of probable cause for the proceedings; and (6) [t]he suffering of damages as a result of the action or prosecution complained of.

Moon v. Condere Corp., 690 So.2d 1191, 1194 (Miss. 1997) (citations omitted). Orr's appeal focuses on two elements: want of probable cause and malice in instituting the proceedings.

A. Probable Cause

¶ 8. In Hudson v. Palmer, 977 So.2d 369, 381 (¶ 33) (Miss. Ct. App. 2007), this Court held:

In the context of a malicious[-]prosecution claim, probable cause consists of a reasonable and honest belief in the guilt of the accused. Coleman[v. Smith], 914 So. 2d [807, 813 (¶ 12) (Miss. Ct. App. 2005) ]. Also, "probable cause is determined from the facts apparent to the observer when the prosecution is initiated." Id. If probable cause existed for the initiation of criminal proceedings, a claim for malicious prosecution must fail. Id.

"Unfounded suspicion or conjecture are not proper bases for finding probable cause." Perkins v. Wal–Mart Stores Inc., 46 So.3d 839, 845 (¶ 13) (Miss. Ct. App. 2010).

¶ 9. There is no factual dispute that Orr possessed the store's iPad on the night of July 4, 2014. No one saw Orr take the iPad from the store, but Orr was the last person seen with it. Orr left the front of the store with the iPad, and she came out of storeroom area a few minutes later with a large purse. According to Orr, she took the iPad to the storeroom to charge the battery. She put her purse on the counter in front of Stephens and, after some discussion about her work schedule, told Stephens she was quitting and gave her two-week notice.³ When she and Stephens left the store, Orr was carrying her purse. Regarding the other two employees present at closing, Manchester left with Stephens and Orr that night. He returned to work the next week and assisted Morgan in searching for the iPad. Miller never returned to work after the alleged theft either, but she left that night in view of others without a purse—only keys and a phone.⁴

¶ 10. Orr stated in her deposition that she had only used the iPad a couple of times to enter in a referral for work. When asked whether it was customary to plug in the iPad, she said she only plugged it in that one time. But she claimed that, prior to using it, "Krista, who was assistant manager at the time, said that if I was using it and if it was ever low, to plug it up."⁵ Morgan acknowledged in her deposition that all employees had access to the iPad, and the charger for the iPad was in the back room. If an employee noted the battery was low, he or she had the authority to go the back room and charge it.

¶ 11. In Perkins, this court found that probable cause existed because an employee said the plaintiff, Perkins, knew he did not pay for an ink cartridge, and video showed him looking at his change from the transaction. Unlike Perkins, no one saw Orr take the iPad. Furthermore, management did not contact Orr until days after the iPad was discovered missing. Rather, store management continued to search the store, unsure of what happened to it, which a jury could reasonably find indicates conjecture as to what happened to it or who may have taken it. In her statement to police, Morgan said that "it seemed to [her] that [Orr] took the iPad into the back to conceal it in her purse." (Emphasis added). She testified: "We had searched the entire store. We were hoping that it might turn back up. And I had attempted to reach out to everyone who was there that night, and to every teammate who worked there ... So after no conclusion, then that's when we filed the report." (Emphasis added). Morgan did not contact the corporate office until July 7. In her email, she noted that the iPad was "MIA" when she came to work Saturday, and "no one seems to remember who had it last or where it was."

¶ 12. But Orr said Morgan called her on July 12 (a week later), accused her of stealing the iPad, and told Orr that she did not need to talk to anyone else because she knew Orr stole the iPad. Stephens testified that he watched the security video before signing an affidavit for an arrest warrant and talked to employees "that were working with me at the time," including Manchester and Miller. However, Stephens did not "look into [Orr's] purse." He said that he, Morgan, and corporate "came to our...