Smithfield Packing Co., Inc. v. Evely

• Decision Date: 01 May 2006
• Docket Number: No. 806, September Term, 2005.,806, September Term, 2005.
• Citation: 905 A.2d 845,169 Md. App. 578
• Parties: SMITHFIELD PACKING COMPANY, INC. v. Ransom EVELY et al.
• Court: Court of Special Appeals of Maryland

Page 845

905 A.2d 845

169 Md. App. 578

SMITHFIELD PACKING COMPANY, INC. v. Ransom EVELY et al.

No. 806, September Term, 2005.

Court of Special Appeals of Maryland.

May 1, 2006.

Reconsideration Denied September 22, 2006.

COPYRIGHT MATERIAL OMITTED

E. Duncan Getchell, Jr. (Amy M. Pocklington, Erin M. Sine, McGuire Woods LLP, on brief), Richmond, VA, Robert R. Niccolini, on brief, Baltimore, Steven B. Schwartzman, Hodes, Ulman, Pessin & Katz, PA, on brief, Towson, for appellant.

Daniel S. Kozma, Keith Watters, on brief, Washington, DC, for appellee.

Panel DAVIS, ADKINS and KRAUSER, JJ.

DAVIS, J.

Appellant/Cross-Appellee, Smithfield Packing Company, Inc., appeals from a verdict rendered by a jury in the Circuit Court for Prince George's County, on its claim of malicious prosecution, in favor of appellee/cross-appellant, Kenneth Moore. The jury awarded Moore $560,523 in compensatory damages and $1,000,000 in punitive damages. The compensatory damage award included $52,947 in lost wages and $2,971 in interest on lost wages. The balance of the award was for non-economic compensatory damages. The court granted a remittitur reducing Moore's non-economic compensatory damages award to $304,605 and his punitive damages award to $200,000. The court granted appellant's motion for Judgment Notwithstanding the Verdict (JNOV) on the jury award of lost wages and interest on lost wages. Appellees/cross-appellants (hereinafter "Evely" and "Moore") filed a cross appeal from the trial court's order granting appellant's motion for JNOV on the jury's award of lost wages, Moore and Evely's claim for abusive discharge, and the remittitur reducing the compensatory and punitive damages award.

The appellees filed a four count complaint on June 5, 2002 against appellant alleging malicious prosecution (Count 1), defamation (Count II), abusive discharge (Count III), and intentional infliction of emotional distress (Count IV). Appellant, on July 29, 2002, filed a motion to dismiss Counts II, III, and IV; the court granted the motion as to Count II, but denied it as to counts III and IV. On March 7, 2003, appellant filed a motion for summary judgment on the three remaining counts, which was denied on April 24, 2003. The case proceeded to trial on June 23, 2003.

Following a four-day trial, on June 26, 2003, the jury returned verdicts in favor of Evely and Moore. The jury found for Evely on Counts III and IV of the complaint, awarding damages in the amount of $308,716, and for Moore on Counts I, III, and IV and awarded damages in the amount of $488,601.¹ The trial court refused to submit the issue of punitive damages to the jury because appellees were unable to prove the financial condition of appellant, pursuant to this Court's decision in Fraidin v. Weitzman, 93 Md.App. 168, 611 A.2d 1046 (1992). Appellees filed a post-trial motion, requesting a new trial on the issue of punitive damages, while appellant submitted a post-trial motion for JNOV as to all three counts of the complaint.

A hearing was held on the post-trial motions on April 23, 2004. The trial court granted appellant's motion for JNOV as to counts III and IV for both parties, ending the litigation with respect to Evely; however, it denied the motion on Moore's verdict for malicious prosecution. On June 8, 2004, the court issued an Order granting Moore a new trial on Count I for malicious prosecution on the underlying tort claim and the claim for punitive damages. In its order, the court states:

The Court has reviewed the Issue of the Malicious Prosecution Count and re-reviewed the testimony concerning the March 5th encounter[²] with Moore. The Court did not comply with Montgomery Ward v. Wilson, 339 Md. 701, 664 A.2d 916 (1995), frankly because the Court was unaware of this requirement and neither counsel made such a suggestion. In essence, it is incumbent upon the Court in a malicious prosecution case, where the issue of probable cause or lack thereof is disputed to outline for the jury the various contentions and instruct the jury as to what constitutes and does not constitute probable cause. After trial the Court is now aware of the wisdom behind the rule. Post-Trial the Court must now attempt to piece together what the jury could have concluded from the various factual contentions. The Court frankly would be in the position of guessing and does not believe that justice would be served. Accordingly, the Court will grant a new trial to Moore with respect to the issue of Malicious Prosecution both as to the underlying tort and any damages purportedly sustained.

The court granted the motion for a new trial on the issue of punitive damages because post-trial, but prior to ruling on the motions, the Court of Appeals decided Darcars Motors of Silver Springs, Inc. v. Borzym, 379 Md. 249, 841 A.2d 828 (2004), which the court found effectively overruled Fraidin, supra, and permitted the issue of punitive damages to be decided by a jury, without first being presented evidence concerning the financial condition of the defendant.

In the second trial, which was held on November 8-10, 2004, the jury found in favor of Moore. On November 29, 2004, appellant filed a motion for JNOV, which was opposed by appellee and a hearing was held on March 22, 2005. The court granted the motion for JNOV only as to Moore's award of lost wages, in the amount of $52,947 and interest in the amount of $2,971 and remitted and reduced the compensatory damage and punitive damage awards as stated, supra. The court reserved entering its final order to permit the parties to attempt to resolve the dispute through Alternative Dispute Resolution (ADR) and pending Moore's acceptance of the remittance. Appellee filed a motion for reconsideration of the court's June 8, 2004 grant of appellant's motion for JNOV as to the abusive discharge claims. The court denied the motion for reconsideration on May 16, 2005. Moore accepted the remittance and the court entered a final judgment in the case.

Appellant filed this timely appeal, presenting four issues for our review, which we quote:

1. Whether Moore established that Smithfield Packing instituted or continued criminal proceedings by providing false information, by giving inaccurate information, or by withholding information bearing on the decision to prosecute?

2. Whether Moore established that Smithfield Packing lacked probable cause to institute or continue criminal proceedings against Moore?

3. Whether Moore established that Smithfield Packing possessed the requisite malice in instituting criminal proceedings?

4. Whether Moore proved by clear and convincing evidence that Smithfield Packing was motivated by actual malice in instituting the criminal proceedings, so as to support punitive damages?

Appellees/cross-appellants present three questions for review.

1. Did the court err when it granted JNOV to Smithfield on the jury's award of lost wages and interest on lost wages proximately caused by Smithfield's malicious prosecution and subsequent termination of Mr. Moore's employment?

2. Did the court err when it granted a remittitur of the jury's award of noneconomic damages and a reduction of the jury's award of punitive damages without giving any reasons or rationale?

3. Did the court err when, after the first trial, it granted Smithfield's motion for JNOV on Mr. Moore's and Mr. Evely's claims of abusive discharge?

We hold that the evidence was insufficient to sustain Moore's claim for malicious prosecution because, when the evidence is viewed in a light most favorable to appellees, appellant had probable cause to believe that Moore was involved in a theft. Consequently, we reverse the judgment of the Circuit Court for Prince George's County in favor of appellee. Our decision renders appellant's third and fourth questions, as well as appellees' first and second questions, moot; therefore, those questions will not be addressed in this opinion. Appellees' third assignment of error is dismissed.

FACTUAL BACKGROUND

In November of 2000, appellant, believing that it may be the victim of employee theft at its Landover, Maryland facility, initiated an investigation. The investigation commenced on November 6, 2000 and continued until January 12, 2001 and was conducted by appellant's Head of Security, Danny Priest. As part of the investigation, Priest employed the services of William Britt to work undercover at the Landover facility as an employee in the shipping department. The record reveals that nine individuals were prosecuted by appellant for theft as a result of appellant's investigation, including Evely and Moore.

Moore and Evely were accused of theft as a result of an incident which occurred on December 18, 2000. Moore was employed as a truck driver by Smithfield and Evely as a shipping supervisor, at the Landover facility. On December 18, 2000, Moore arrived at the Landover facility to collect his shipment for transport to New Jersey. During a conversation with Evely, he was informed that his shipment was short two cases and he would have to attach the trailer to the truck and bring it back to the dock to have the cases loaded. Because Moore was in a hurry to go to dinner, he apparently did not want to connect the trailer and then disconnect it again before leaving for dinner, only to have to repeat the process before transporting the shipment. Evely then instructed two shipping employees, Britt and Thomas Perry (the latter having been one of the employees prosecuted for theft) to assist Moore in loading the two cases of hams into his tractor. After loading the cases in the tractor, Moore pulled away from the loading dock.

The testimony of Priest revealed that the procedure was, as the products are being loaded onto the truck, the boxes are scanned and their location on the truck is marked on the load sheet. Once a load is complete, the trailer is sealed and moved to the yard to await transport. The undercover investigator, Britt, reported the...