Wal-Mart Stores, Inc. v. Patterson

• Decision Date: 05 October 2001
• Citation: 816 So.2d 1
• Parties: WAL-MART STORES, INC. v. Reginald S. PATTERSON.
• Court: Alabama Supreme Court

816 So.2d 1

WAL-MART STORES, INC. v. Reginald S. PATTERSON.

1000548.

Supreme Court of Alabama.

October 5, 2001.

David S. Snoddy and David A. Lee of Parsons, Lee & Juliano, P.C., Birmingham, for appellant.

Rhonda Pitts Chambers of Taylor & Taylor, Birmingham; and Bill Thomason of Lipscomb & Thomason, P.C., Bessemer, for appellee. WOODALL, Justice.

Wal-Mart Stores, Inc. ("Wal-Mart"), sought permission pursuant to Rule 5, Ala. R.App. P., to appeal the denial of the summary-judgment motion it filed in an action commenced against it by Reginald S. Patterson. We granted Wal-Mart permission to appeal, and we affirm.

According to the undisputed facts, on September 13, 1993, Sandra Patterson, at that time the estranged wife of Reginald S. Patterson, entered the Wal-Mart discount store in Fairfield, presented merchandise at a checkout counter, and issued a check drawn on the account of Reginald S. Patterson at AmSouth Bank, N.A. ("Am-South"), in payment for the merchandise.¹ She signed the check "Reginald S. Patterson." AmSouth refused to honor the check because there were insufficient funds in the account, and it returned the check to Wal-Mart.

Wal-Mart attempted unsuccessfully to contact Reginald Patterson at the telephone number printed on the check. On October 19, 1993, Wal-Mart sent a notice by certified mail to "Reginald S. Patterson," at the address printed on the check. That notice stated, in pertinent part:

"This statutory notice is provided pursuant to section 13A-9-13.2 of the Alabama Code. You are hereby notified that a check or instrument number 284 apparently issued by you on 9-13-93, drawn upon AmSouth, has been dishonored. Pursuant to the Alabama Law, you have ten (10) days from receipt of this notice to tender payment of the full amount of the check or instrument plus a service charge of [$20.00], the total being $98.16. Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume you delivered the instrument with the intent to defraud, and turn over the dishonored instrument and all other available information relating to this incident to the proper authorities for criminal prosecution."

After unsuccessfully attempting delivery on three separate dates, the United States postal service returned the notice, marked "Unclaimed."

On July 11, 1997, the Fairfield Municipal Court, upon Wal-Mart's complaint, issued a warrant for the arrest of Reginald S. Patterson. On July 15, 1997, Patterson voluntarily presented himself to the Fairfield Police Department for arrest. On October 9, 1997, the case was nolprossed on the ground that the signature on the check was a forgery.

Thereafter, Patterson sued Wal-Mart on various theories of negligence, wantonness, and malicious prosecution. Wal-Mart moved for a summary judgment, on the ground that it was immune from civil liability for instigating the prosecution of Patterson.² In its order denying that motion, the trial court stated, in pertinent part:

"On September 13, 1993, a check was written to the Fairfield Wal-Mart Store on the account of Reginald Patterson. The check was not honored by Patterson's bank. The evidence concerning the identity of the person who actually negotiated that check is undisputed. The check was negotiated by Patterson's ex-wife.

". . . .

"Defendant puts all its eggs in one basket in support of summary judgment. Wal-Mart argues that it is entitled to summary judgment based on the case of Johnson v. Wal-Mart Stores, Inc., [769 So.2d 929 (Ala.Civ.App.1999)]. In Johnson, Wal-Mart argued that Ala.Code 1975, § 13A-9-13.2(3), provided it with immunity from civil liability in a malicious prosecution case over a worthless instrument. That statute reads:

"`Any party holding a worthless negotiable instrument and giving notice in substantially similar form to that provided in subdivision (2) of this section shall be immune from civil or criminal liability for the giving of such notice and for proceeding under the forms of such notice.'

"Ala.Code, 1975, § 13A-9-13.2(3).

"Johnson is the only reported case that has held that the statute immunizes one whose conduct otherwise constitutes malicious prosecution. However, this court finds that Johnson is not applicable to this case because there is no evidence before the court that Wal-Mart complied with the provisions of the Worthless Check Act so as to be entitled to immunity. Noticeably absent from Wal-Mart's evidentiary submission in support of its motion for summary judgment is a copy of the back of the check in question. Only the front of the check was offered. Therefore, there is no evidence that Wal-Mart complied with the identification procedures required by Ala.Code 1975, § 13A-9-13.3 prior to accepting the check in question. The statute requires that a party accepting a negotiable instrument shall request the presenter's name, residence address and home phone number....

"Johnson holds that the Worthless Check Act grants civil immunity to a holder of a worthless negotiable instrument who gives appropriate notice and otherwise follows the mandates of the statute. Johnson is not applicable in this case because there is no evidence that the identification procedures required by Ala.Code 1975, § 13A-9-13.3 prior to accepting the check in question were followed in this case. To hold otherwise would be to give carte blanche immunity to every storekeeper who simply gives proper notice that a check has been dishonored even though they are aware that the check was presented by someone other than the owner of the account. Johnson is simply not that broad."

On November 17, 2000, Wal-Mart moved for a certification of appealability to this Court of a "controlling issue of law," which Wal-Mart described as follows:

"Wal-Mart is entitled to immunity from the plaintiff's claims pursuant to [Ala.Code 1975,] § 13A-9-13.2(3) and Johnson v. Wal-Mart Stores, Inc., [769 So.2d 929 (Ala.Civ.App.1999)].

". . . .

"The facts of Johnson v. Wal-Mart are identical to the case at bar. In both cases, the plaintiffs claim that they were wrongfully prosecuted for a check they did not write. In both cases, the plaintiffs claim that their respective spouses wrote the checks in question. In both cases, the plaintiffs claim that the defendants knew that someone other than the plaintiffs wrote the checks in question. In Johnson, the Court of Civil Appeals held that because Wal-Mart gave notice and otherwise followed the mandates of the Worthless Check Act it was immune from civil prosecution."

The trial court granted Wal-Mart's motion, and, pursuant to Ala. R.App. P. 5, this Court allowed Wal-Mart permission to appeal. On appeal, Wal-Mart contends that the trial court erred in denying its summary-judgment motion on the basis that it failed to present evidence that it had complied with the identity provisions of § 13A-9-13.3. Thus, the sole question before us is whether the trial court erred as a matter of law in holding that Wal-Mart is not entitled to the immunity § 13A-9-13.2 affords the holder of a dishonored check, absent evidence that it had complied with the identification procedures set forth in § 13A-9-13.3. We answer that question in the negative.

At all relevant times, the Alabama Worthless Check Act, Ala.Code 1975, §§ 13A-9-13.1 to -13.3 ("the Act"), provided, in pertinent part:³

"[§ 13A-9-13.1](a) A person commits the crime of negotiating a worthless negotiable instrument if he negotiates or delivers a negotiable instrument for a thing of value and with the intent, knowledge or expectation that it will not be honored by the drawee.

"(b) For the purposes of this section, it is prima facie evidence that the maker or drawer intended, knew or expected that the instrument would not be honored if:

"(1) The maker or drawer had no account with the drawee at the time the negotiable instrument was negotiated or delivered, as determined according to Section 7-3-503(2); or

"(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of not more than $20.00, within 10 days after receiving written notice from the holder of the instrument that payment was refused upon such instrument, as provided in Section 13A-9-13.2; or

"(3) Notice that payment was refused is mailed by certified or registered mail and is returned undelivered to the sender, when such notice is mailed within a reasonable time after dishonor to the address printed on the instrument or given by the maker or drawer at the time of issuance of the instrument."

"[§ 13A-9-13.2] For purposes of Section 13A-9-13.1:

"(1) Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making, drawing, uttering or delivering said instrument.

"(2) The form of notice shall be substantially as follows:

"`This statutory notice is provided pursuant to Section 13A-9-13.2 of the Alabama Code. You are hereby notified that a check or instrument numbered........, apparently issued by you on ........ (date), drawn upon.............. (name of bank), and payable to .............., has been dishonored. Pursuant to Alabama law, you have 10 days from receipt of this notice to tender payment of the full amount of such check or instrument plus a service charge of not more than $20.00, the total amount due being $ ......... Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that you delivered the instrument with intent to defraud and may turn over the dishonored instrument and all other available information relating to this incident to the proper authorities for criminal prosecution.'

"(3) Any party holding a worthless negotiable

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