Street v. Shoe Carnival, Inc.

• Citation: 660 N.E.2d 1054
• Decision Date: 29 January 1996
• Docket Number: No. 49A02-9503-CV-154,49A02-9503-CV-154
• Parties: Deborah L. STREET and Okeema Heise, Appellants-Plaintiffs, v. SHOE CARNIVAL, INC. and Randall C. Wright, Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 1054

660 N.E.2d 1054

Deborah L. STREET and Okeema Heise, Appellants-Plaintiffs, v. SHOE CARNIVAL, INC. and Randall C. Wright, Appellees-Defendants.

No. 49A02-9503-CV-154.

Court of Appeals of Indiana.

Jan. 29, 1996.

Appeal from the Marion Circuit Court, John M. Ryan, Judge; Cause No. 49C01-9304-CT-122.

Patrick M. O'Brien, Brett Ryan Fleitz, Kevin G. Harvey, Steers Sullivan, P.C., Indianapolis, for Appellants.

Richard S. Ewing, Thomas W. Blessing, Stewart & Irwin, Indianapolis, for Appellees.

OPINION

ROBERTSON, Judge.

Deborah L. Street and Okeema Heise appeal the grant of summary judgment in favor of Shoe Carnival, Inc. and Randall C. Wright (collectively, Shoe Carnival). They present the following issues:

I. The trial court erred when it ruled that Appellants-Plaintiffs' claims for false imprisonment present no genuine issue of material fact for trial and entered summary judgment in Appellees-Defendants' favor on said claims.

II. The trial court erred when it ruled that Appellants-Plaintiffs' claims for defamation present no genuine issue of material fact for trial and entered summary judgment in favor of Appellees-Defendants' favor on said claims.

III. The trial court erred when it ruled that Appellant-Plaintiff Okeema Heise's claim for punitive damages presents no genuine issue of material fact for trial and entered summary judgment in Appellees-Defendant's favor on said claim.

We reverse.

The disposition of a case by summary judgment is appropriate only when no genuine issues of material fact exist and the proponent is entitled to judgment as a matter of law. Lewis v. City of Indianapolis (1990), Ind.App., 554 N.E.2d 13, trans. denied. When the court determines the propriety of summary judgment, it accepts as true all the facts which support the nonmovant and resolves all doubts in its favor. Chester v. Indianapolis Newspapers (1990), Ind.App., 553 N.E.2d 137, trans. denied.

The evidence most favorable to Street and Heise shows that they entered a Shoe Carnival store with Heise's husband and with two of the Heises' children. They shopped for merchandise, and Mr. Heise found some shoes for himself. Heise wanted some shoes for herself and the children, so Mr. Heise planned to go to the bank for some more money.

Heise found some shoes for the children and gave them to the children to hold. She placed some shoes for herself on the top of the stroller and continued to shop. As she found other pairs of shoes more appealing, she would exchange the other shoes for the shoes she had chosen previously.

Street also found some shoes and carried them in the same hand as her clutch purse. She carried some tissues in her other hand to use on the children. She found some socks for Heise's daughter and held them in the hand with the tissue.

Mr. Heise paid for his own shoes and told his wife he was going to the bank for the money. Heise and Street were at the front of the store at the time and continued to shop.

Wright, the loss prevention manager, then confronted Street and Heise. Wright twisted Street's arm behind her back and pinned her down on the cash register counter. Many customers were in the establishment at the time. Wright then yelled, "resisting arrest call 911 hurry. Resisting arrest." Wright and another employee then led Street and Heise to the office. Wright used foul language throughout the episode.

Shoe Carnival obtained summary judgment in light of Ind.Code 35-33-6-2:

(A) An owner or agent of a store who has probable cause to believe that a theft has occurred or is occurring on or about the store and who has probable cause to believe that a specific person has committed the theft may:

(1) detain the person and request the person to identify himself;

(2) verify the identification;

(3) determine whether the person has in his possession unpurchased merchandise taken from the store;

(4) inform the appropriate law enforcement officers; and

(5) inform the parents or others interested in the person's welfare, that the person has been detained.

(B) The detention must:

(1) be reasonable and last only for a reasonable time; and

(2) not extend beyond the arrival of a law enforcement officer or two (2) hours, whichever first occurs.

Indiana Code Subsection 35-43-4-2(a) defines theft as follows:

A person who knowingly or intentionally exerts unauthorized control over property of another person commits theft ...

Probable cause to initiate a criminal prosecution exists where facts found on a reasonable inquiry would induce a reasonably intelligent and prudent person to believe the accused has committed the crime. Duvall v. Kroger Co. (1990), Ind.App., 549 N.E.2d 403. Probable cause is normally an issue for the jury's determination. Id. To be considered genuine for summary judgment purposes, a material issue of fact must be established by sufficient evidence in support of the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Colbert v. Waitt (1982), Ind.App., 445 N.E.2d 1000.

Wright's version of the events contradicts that of Street and Heise. Wright claims Street placed two pairs of shoes in her purse. He claims Heise gave Street a pair of shoes which Street placed in a diaper bag on the stroller. Wright claims Street placed some socks in her pocket and left them there, where he found them later. While in the office, Wright accused the two of stealing shoes.

Evidence that a person removed property from any place within a business premises at which it had been displayed or offered to a point beyond that at which payment should have been made constitutes prima facie evidence of intent to deprive the owner of any part of its value and that the person exerted unauthorized control over the property. Ind.Code 35-43-4-4(c)(2). The undisputed evidence shows that Street and Heise had possession of Shoe Carnival merchandise beyond the point of payment. Shoe Carnival claims that this evidence shows it had probable cause to detain Street and Heise.

The evidence most favorable the Street and Heise, however, shows that Shoe Carnival offers merchandise for sale beyond the cash registers, even on the sidewalk outside the store. The evidence most favorable to the nonmovants supports the inference that, although Street and Heise had possession of Shoe Carnival's property beyond the point of payment, they merely continued to shop for merchandise while Heise's husband went to the bank for more money. For example, in her deposition, Street stated she had held a pair of blue shoes and a pair of white socks in her hand but did not stop to pay for them because, "I wasn't paying yet." A reasonable person could believe that Street and Heise had not committed theft and were not attempting to commit theft and that Shoe Carnival did not have probable cause to believe otherwise.

Evidence that a person concealed property displayed or offered for sale or hire constitutes prima facie evidence of intent to deprive the owner of any part of its value and that the person exerted unauthorized control over the property. I.C. 35-43-4-4(c)(1). The term "conceal" means to hide, secrete, to keep out of sight, or prevent the discovery of an item. See Dennis v. State (1952), 230 Ind. 210, 217, 102 N.E.2d 650, 653 (crime of accessory after the fact). Wright contends that Street placed a pair of children's socks in her pocket and that he therefore had probable cause to detain her.

Street acknowledges that she put the socks in her pocket but only because the socks had been in her hand and she had reached briefly into her pocket to grab a tissue for the children. She had her purse and a pair of shoes in her other hand at the time. A reasonable person could conclude that Street did not conceal the socks but, despite having reached momentarily into her pocket for a tissue with the socks in her hand, possessed the socks in a manner not calculated to prevent their discovery. Again, a reasonable person could believe that Street and Heise had not committed theft and were not attempting to commit theft and that Shoe Carnival did not have probable cause to believe otherwise.

The State filed criminal charges against Street and Heise based upon the information Wright had submitted to the authorities. Based upon the information, a trial judge found probable cause to detain Street and Heise. At the request of the State, however, the trial judge dismissed the charges after the civilian witnesses, including Wright, had not appeared for trial. Shoe Carnival now claims that the judicial finding of probable cause in the criminal proceeding is dispositive of the existence of probable cause in the present case.

Shoe Carnival notes that a judicial determination of probable cause in a criminal proceeding may constitute prima facie evidence of probable cause in a subsequent action for malicious prosecution. Shoe Carnival contends that the same is true of a subsequent action for false imprisonment. Shoe Carnival notes that the prima facie case may be rebutted by evidence that shows the finding of probable cause was induced by false testimony or fraud. Lazarus Department Store v. Sutherlin (1989), Ind.App., 544 N.E.2d 513, 520, trans. denied. Shoe Carnival claims that the present case contains no such evidence and that its established prima facie case remains unrebutted.

Despite the validity of the authority just mentioned, this Court has explained that:

the finding of the examining court is, at most, but prima facie evidence of the existence of probable cause, and that to rebut this prima facie case it is not necessary to attack that judgment as procured by fraud. All that can be required on trial is the exhibition of such a state of facts as will fairly rebut and overcome this finding in the minds of the jury.

Louisville, New Albany and Chicago Railway Co. v. Hendricks (1895) 13 Ind.App. 10, 40 N.E. 82, reh. denied, 13 Ind.App. 10, 41 N.E. 14 (malicious prosecution case).

In the...