Scarborough v. Dillard's, Inc.

• Decision Date: 01 August 2006
• Docket Number: No. 05-1191.,05-1191.
• Citation: 632 S.E.2d 800
• Court: North Carolina Court of Appeals
• Parties: Bernard SCARBOROUGH, Plaintiff, v. DILLARD'S, INC., Defendant.

632 S.E.2d 800

Bernard SCARBOROUGH, Plaintiff, v. DILLARD'S, INC., Defendant.

No. 05-1191.

Court of Appeals of North Carolina.

August 1, 2006.

Appeal by Plaintiff from judgment entered 13 January 2005 and order entered 24 February 2005 by Judge Hugh B. Campbell, Jr., in District Court, Mecklenburg County. Heard in the Court of Appeals 9 May 2006.

David Q. Burgess, Charlotte, for plaintiff-appellant.

Poyner & Spruill, L.L.P., by David W. Long, Douglas M. Martin and Julie W. Hampton, Charlotte, for defendant-appellee.

WYNN, Judge.

"When reviewing the evidence regarding a finding by the trier of fact concerning liability for punitive damages ..., the trial court shall state in a written opinion its reasons for ... disturbing the finding or award." N.C. Gen.Stat. § 1D-50 (2005). In this case, Plaintiff appeals the trial court's grant of Dillard's motion for judgment notwithstanding the verdict setting aside a jury's punitive damages award in a malicious prosecution case. Because the trial court failed to set out its reasons for disturbing the jury's award of punitive damages to Plaintiff, we remand this matter for entry of an order consistent with the mandates of section 1D-50.

The evidence presented at trial tended to show that on 27 October 1997, Plaintiff Bernard Scarborough worked in the ladies' shoe department of Dillard's, where he had been employed on a part-time basis for over two years. At about 8:00 p.m., Mr. Scarborough waited on two women, and spent about thirty-five to forty minutes showing them different pairs of shoes. One of the women decided to purchase two pairs of shoes. Mr. Scarborough took the shoes to the sales register to complete the sale, scanned the barcode on the shoes, and put them into a sales bag.

As Mr. Scarborough completed the transaction, the second woman asked him to check the price on a pair of shoes she wanted to purchase. Mr. Scarborough voided the first woman's shoes so that he could check the price of the shoes for the second woman. Thereafter, Mr. Scarborough scanned the price for the second woman's pair of shoes and walked to the stockroom to get the shoes in the woman's size. Upon discovering that the store did not have the shoes in the width that the woman needed, Mr. Scarborough agreed to stretch the shoes for the woman. In response, the woman and her friend said they would return for the shoes in a few minutes. Mr. Scarborough returned to the stockroom to begin stretching the shoes, and the women left with the bag containing two pairs of shoes that had not been paid for.

The women later returned and asked Mr. Scarborough if he could hold the third pair of shoes until the next day. Mr. Scarborough agreed, and the woman wanting the third pair of shoes wrote her name on a piece of paper. To receive credit for the sale when the woman returned for the shoes, Mr. Scarborough wrote his employee identification number on the piece of paper and attached it to the shoe box.

While preparing to close the shoe department for the evening, Mr. Scarborough discovered that the sales transaction for the two pairs of shoes was missing from the sales registry. He called Steven Gainsboro, a Dillard's store manager, and explained to him that he had mistakenly forgotten to ring two pairs of shoes given to a customer earlier that evening. Mr. Gainsboro told Mr. Scarborough that he would discuss the incident the next day with the shoe department manager, David Hicklin. On the following day, Mr. Scarborough contacted Mr. Hicklin to explain what happened regarding the failed transaction. Mr. Hicklin told Mr. Scarborough that they would discuss it when he came to work that evening.

Upon Mr. Scarborough's arrival at work that evening, he met with Mr. Hicklin, the shoe department manager; Kevin McClusky, a Dillard's store manager; and Officer Collin Wright, an officer with the Charlotte-Mecklenburg Police Department who also worked part-time as a Dillard's security guard. During the two-hour interview, Mr. Scarborough took responsibility for the error and offered to pay the price of the shoes to compensate Dillard's for the loss incurred. Mr. Scarborough also offered to submit to a polygraph examination. Nonetheless, Mr. McClusky threatened to fire Mr. Scarborough from his part-time job, to "mess up [Mr. Scarborough's] job" at First Union Bank, and to have him charged with the crime of embezzlement if he refused to tell him the names of the customers involved in the transaction. Mr. Scarborough stated he did not know the women and, therefore, could not tell him their names. Officer Wright continued to question Mr. Scarborough regarding the failed transaction and took a written statement from him, which Mr. Scarborough signed and Mr. Hicklin witnessed. Mr. Scarborough was then terminated.

Another Dillard's security guard, Officer Ken Schul, who was also employed as a sergeant with the Charlotte-Mecklenburg Police Department, took statements regarding Mr. Scarborough's failed transaction from three Dillard's employees. Subsequently, Officer Schul met with Assistant District Attorney Nate Proctor regarding his investigation of Mr. Scarborough. After hearing the evidence Officer Schul presented and reviewing the related documentary evidence, Assistant District Attorney Proctor authorized the prosecution of Mr. Scarborough for embezzlement.

Two weeks after the incident, police officers arrested Mr. Scarborough in the atrium of One First Union Center located in uptown Charlotte and escorted him through the atrium in handcuffs to a police car. Upon his release from jail, Mr. Scarborough returned to his job at First Union Bank and was told that because of the embezzlement charges, his employment with the bank had been terminated and that he would not be eligible to return to work unless the charges were cleared.

Mr. Scarborough was tried on the embezzlement charge in Superior Court, Mecklenburg County on 27-28 May 1998, and the jury returned a verdict of not guilty. On 4 April 2001, Mr. Scarborough filed suit against Dillard's for malicious prosecution.

At trial, Mr. Scarborough testified to the events that occurred, including those leading up to, during, and after his prosecution. Mr. Scarborough also presented two character witnesses and another witness, his fiance, who testified to the effect of the prosecution on Mr. Scarborough. At the close of Mr. Scarborough's evidence, Dillard's moved for a directed verdict, which the trial court denied. Dillard's then presented evidence through the testimony of Officers Schul and Wright regarding their investigation of Mr. Scarborough. The assistant district attorneys who authorized and prosecuted the embezzlement case against Mr. Scarborough also testified on...