Sawada v. Walmart Stores, Inc., CV–15–56

• Decision Date: 07 October 2015
• Docket Number: No. CV–15–56,CV–15–56
• Citation: 473 S.W.3d 60
• Parties: Mai Sawada, Appellant v. Walmart Stores, Inc., and Walmart Stores Arkansas, LLC d/b/a Walmart Supercenter #58.
• Court: Arkansas Court of Appeals

473 S.W.3d 60

Mai Sawada, Appellant

v.Walmart Stores, Inc., and Walmart Stores Arkansas, LLC d/b/a Walmart Supercenter #58.

No. CV–15–56

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 7, 2015

Odom Law Firm, P.A., Fayetteville, by: Conrad T. Odom and Skelton Law Firm, P.A., Russellville, by: Wm. Douglas Skelton, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Rogers, by: Jeffrey L. Spillyards, for appellees.

BRANDON J. HARRISON, Judge

Mai Sawada appeals a Pope County Circuit Court order granting summary judgment to Walmart on her claims for defamation, malicious prosecution, abuse of process, outrage, and false light/invasion of privacy. We affirm in part and reverse and remand in part.

I. Background

Twenty-two-year-old Mai Sawada worked as a part-time cashier for Walmart in Russellville, Arkansas, in 2012. Sawada's friend Lily Xayadeth—a self-described "extreme couponer"—shopped frequently at the Russellville Walmart. After receiving a tip from an accounting associate, Walmart Asset Protection Manager Karen Bryant investigated the discounts, coupons, and price matching that Sawada had been giving Xayadeth when ringing up Xayadeth's frequent purchases. After the investigation concluded, Bryant interviewed Sawada, and Sawada provided a handwritten statement on 6 July 2012. Here is Sawada's entire statement:

I have been checking this specific customer [Lily Xayadeth]. She is one of my friends so whenever she tells me the price of Ad match I do not check the ad even though it is not [a] reasonable price. She used to bring the ad since there are so much price match and coupons. I just price override whatever the price she told me. I did not know we do not ad match buy one get one free. So when she tells me buy one get one free, I used vendor coupon to take off the price. When the coupon price is more than her purchase, I put the difference on gift card, therefore she sometimes get [sic] money back from her purchase.

When the price is so much cheaper than actual price, I sometimes asked her where is the Ad, and she check so many Ad[s], she cannot remember. She use one coupon per item but some coupons say when you buy two or three, you get to use the coupon. But (I would say because of peer pressure) I just scanned all the coupons she had. I put [Xayadeth's] customer discount card number and EBT even though they didn't have the card with them. Because I knew the person, and I felt sorry for them for [them] forget[ting] to bring their card.

After Bryant's investigation and interview, Sawada was arrested inside Walmart for felony theft of property by a Russellville police officer who had spoken with Walmart management before arresting her. The theft charge was eventually nolle prossed; Sawada subsequently filed five tort claims against Walmart.

Her 2013 complaint claimed that the local newspaper, the Russellville Courier, ran an article with her mug shot in July 2012. The newspaper article stated that Sawada "face[d] felony theft charges after Walmart management told police she allegedly stole approximately $8,000 over a period of time from the store's cash registers," that "store employees ‘observed [her] removing money from the registers,’ " and that she had "allegedly confessed to the theft." Sawada's complaint alleged that these statements by Walmart to law-enforcement officers were false and should not have been used to prosecute her criminally because she had done nothing illegal. She also said she suffered damages by being jailed for three days and that "immediately after the [theft] allegations were published to the public, [she] was terminated from her employment at Arkansas Tech University. The pending felony theft charges were cited as the reason for her dismissal." Sawada claimed that the State nolle prossed the felony-theft charge "[u]pon learning that a store supervisor/manager had approved each and every transaction underlying the criminal accusations[.]"

Walmart moved for summary judgment in April 2014. Sawada conceded summary judgment as to her abuse-of-process claim. After considering the parties' summary-judgment papers and short oral arguments, the court entered summary judgment against Sawada on her remaining four tort claims. Sawada appeals.

II. Discussion

Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Benton Cnty. v. Overland Dev. Co., 371 Ark. 559, 268 S.W.3d 885 (2007). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Id.

A. Malicious Prosecution

To establish a claim for malicious prosecution, a plaintiff must prove five elements:

(1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. Sundeen v. Kroger, 355 Ark. 138, 142, 133 S.W.3d 393, 395 (2003). Probable cause for prosecution must be based upon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which she is charged. Wal–Mart Stores, Inc. v. Binns, 341 Ark. 157, 163, 15 S.W.3d 320, 324 (2000). Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations. McMullen v. McHughes Law Firm, 2015 Ark. 15, at 15–16, 454 S.W.3d 200, 210. In making a probable-cause determination in the context of a malicious-prosecution suit, the court generally "concentrates on the facts before the action commenced." Sundeen, 355 Ark. at 145, 133 S.W.3d at 397. But continuing a prosecution given facts that undermine probable cause can support a malicious-prosecution claim too. Coombs v. Hot Springs Vill. Prop. Owners Ass'n, 98 Ark. App. 226, 233, 254 S.W.3d 5, 11 (2007).

The essence of Sawada's argument on why the court erred by granting summary judgment on her malicious-prosecution claim centers on Walmart's lack of probable cause for her arrest. More facts are needed to fully address Sawada's arguments. In its summary-judgment papers, Walmart presented evidence that it had gathered information about the drastic price reductions Sawada had applied to Xayadeth's transactions over a period of several months. For instance, in May 2012 Xayadeth bought thirty-two containers of Lysol wipes for $.75 each. The marked price for the wipes was $2.48. Sawada applied a 70% discount to the price of the wipes by adding coupons, which resulted in Xayadeth receiving $.27 from Walmart at the end of the transaction. Walmart's evidence reflects that a "supervisor override" occurred to approve the unusual transaction. According to Walmart, it suffered a loss of $55.36 on the Lysol wipes alone.

On 3 June 2012 Xayadeth made eight trips through Sawada's checkout line between 3:06 p.m. and 5:03 p.m. At 9:22 p.m., Sawada provided a price override for every single item Xayadeth bought, applied coupons, and then applied food stamps to pay for the remaining $8.50. The evidence shows no supervisor override. In her deposition testimony, Sawada admitted that her food-stamp card, not Xayadeth's, was used to pay for the transaction and that she kept the discounted food that Xayadeth had bought for her in the 9:22 p.m. transaction. According to Walmart, the loss it suffered on that transaction was $26.48.

Karen Bryant explained during her deposition that Customer Service Managers (CSMs) are supervisors who authorized many of the transactions between Sawada and Xayadeth by providing a "key flick" at checkout. The surveillance videos that were viewed during Bryant's investigation showed that the CSMs were not looking at the discounts Sawada was making in the approved transactions; Bryant maintained that it was not her job to coach CSMs in how to do their jobs.

According to Xayadeth's deposition, a Walmart manager would come to the register and "flip their key" when she would checkout at Sawada's register. Xayadeth stated in her deposition that half the time she did not show Sawada an ad for the items she bought by extreme couponing and that she gave Sawada some of the razors, deodorant, and detergent that she had purchased. Xayadeth agreed that it could look suspicious to Walmart when she received discounts without showing ads to Sawada.

Attached to Sawada's summary-judgment papers was a police report arising from her arrest. The summary page of the report states:

On Friday the 6th of July 2012 at 9:41pm I, Sgt. Alan D. Bradley while I was making a walk through Wal-mart was contacted by Joshua Macisaac, a loss prevention officer, who asked me to wait there because they had an employee theft. Just a few minutes later I was escorted to the security office where I met with Mrs. Karen Bryant, a supervisor and Ms. Mai Sawada, the suspect. Mrs. Bryant informed me that they had observed Ms. Sawada taking money out of the registers. Ms. Sawada had written a statement along with Mrs. Bryant and another employee. The total loss to Walmart was $8,000[.]

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