Wal-Mart Stores v. Lee
| Citation | 74 S.W.3d 634 |
| Decision Date | 16 May 2002 |
| Docket Number | 01-403 |
| Parties | STORES, INC., APPELLANT, VS. ANDY LEE, BENTON CO. SHERIFF and DAVID CLARK, APPELLEES,SUPREME COURT OF ARKANSAS Opinion Delivered 16 May 2002 APPEAL FROM THE BENTON COUNTY CIRCUIT COURT, NO. 99-003-2, HON. DAVID S. CLINGER, JUDGE, AFFIRMED. ANNABELLE CLINTON IMBER, Associate Justice Appellant Wal-Mart Stores, Inc., appeals from a judgment entered on |
| Court | Supreme Court of Arkansas |
Appellant Wal-Mart Stores, Inc., appeals from a judgment entered on September 6, 2000, in favor of Appellee David Clark and from the denial of its posttrial motions. A jury found in favor of David Clark on the issues of defamation, false-light invasion of privacy, and intrusion invasion of privacy. The judgment awarded by the jury totaled $651,000 in compensatory damages and $1,000,000 in punitive damages, plus costs and interest. We affirm.
In 1998, employees in the Wal-Mart Maintenance Department informed their supervisors that fellow employees Gene Addington, Bob Kitterman, and David Clark were taking home tools and equipment from Wal-Mart without proper authorization. Wal-Mart Loss Prevention Officer Jim Elder was assigned to investigate potential theft. He interviewed the informants, who reiterated that they had observed David Clark taking Wal-Mart property and placing the items into his vehicle. Elder then conducted surveillance on Bob Kitterman, which revealed Kitterman removing tools from Wal-Mart and giving them to his son-in-law. Consensual searches of both Kitterman's and his son-in-law's residences resulted in the discovery of Wal-Mart property. According to Elder, Kitterman stated that he had given some stolen Wal-Mart merchandise to David Clark. Wal-Mart never conducted surveillance on Clark.
David Clark was employed by Wal-Mart from July 31, 1989, until he was officially terminated on August 24, 1998. On August 17, 1998, Elder interviewed David Clark in the Quail Room at Wal-Mart's Home Office in connection with Elder's theft investigation. What Elder and Clark discussed in that room was the subject of sharply conflicting testimony at trial. Clark testified that Elder told him Wal-Mart was investigating some missing life jackets and fishing poles and wanted to know if Clark had taken them. Clark stated that he consented to a search of his residence only to show Elder that he did not have any fishing equipment. Elder, on the other hand, admits to mentioning stolen fishing equipment in his conversation with Clark, but claims he did not indicate that was the thrust of his investigation. He testified that he also mentioned computers and tools. Wal-Mart contends that Clark gave an unlimited consent to search. Some handwritten notes made by Clark within a day after the incident recount:
We were alone. Jim said I suppose you heard what happened to Mr. Kitterman. I replied No!! ... Mr. Elder then said that Mr. Kitterman had been suspended after they had searched his shop. Now you need to be able to look Mr. Soderquist in the eye and say you didn't steal anything. We need to go to your house and look in your barn. I said OK! We left the Quail Room and started outside. ... Mr. Elder then ask [sic] about some fishing equipment and life vests, and why I would let Kitterman drop them off at my house. I told him I had no idea and I didn't know anything about any life vests or fishing equipment.
At trial, counsel for Wal-Mart used Clark's notes to suggest that the fishing equipment and life vests were not mentioned inside the Quail Room where Clark gave Elder verbal consent to search.
After the Quail Room interview, Elder called Detective James Haskins of the Rogers Police Department and asked the detective to meet them at Clark's residence. Elder stated that, though Wal-Mart does it's own internal investigation, he always calls the police for safety reasons, as well as for the legality of the search and for evidence purposes. Detective Haskins stated at trial that Elder advised him "that Clark had given them permission to go over to his residence located in Rogers and ... recover some property that belonged to Wal-Mart." Detective Haskins testified that he believed Elder was referring to stolen property. The police report stated that on August 17 "Elder advised [Haskins] that he was en route to 402 East Spruce Street in order to conduct a consent search of this residence looking for stolen property." Detective Haskins arrived at the scene with Detective Scott Briggs, and the detectives presented Clark with a written consent-to-search form, which he signed. The detectives did not give Clark either verbal or written Miranda warnings. Clark's handwritten notes indicate that, prior to signing the form, Elder told him "Kitterman will be in jail tomorrow." The notes further describe Clark's recollection of the events that day:
[T]he man with Rogers P.D. came over to me and said that he was there to protect Wal-Mart and he had a consent to search form allowing Wal-Mart to search my property.... After I had signed the form, Mr. Elder came over to where we were standing and ask [sic] if he was going to need a big truck like they had to have at Kittermans. I said I don't think so!! We then walked over to my shop building and I opened the door. Mr. Elder walked in and [Mr. Womack] said ... I'm going to turn you in to the IRS.... I then went into the house ... and gathered a handful of receipts from the Associate Store and went back outside to Mr. Elder. I held out the receipts to him and ask [sic] him to please look at them as all of the items in my shop belonged to me and that I used to repair equipment for Clarence Leis at the Associate Store for re-sale to our associates. Mr. Elder [sic] that doesn't matter Clarence Leis has got [sic] a lot of people in trouble. At this point ... I became very devastated by the whole thing. I told Mr. Elder that I can prove what belongs to me. He then said we will load it all and you can prove what belongs to you later.
Detective Briggs testified that he called dispatch and asked for the assistance of more officers. The evidence shows that a total of five police detectives and one police officer were eventually involved in the search. The police assisted Elder and Kenneth Womack, another Wal-Mart Loss Prevention Officer, in a search of Clark's home and a shop building on his property. Elder and Womack also enlisted the help of approximately ten to fifteen additional Wal-Mart employees.
The search lasted approximately seven hours, during which time Wal-Mart seized over 400 items, including computer parts, printers, VCRs, TVs, camcorders, fax machines, typewriters, and telephones, among other things. At the outset of the search, Clark told Elder that he repaired items for Wal-Mart and that Clarence Leis had given him some salvage merchandise to keep. As the items were being removed from Clark's home and shop, they were placed out in his yard so that they could be inventoried, photographed, and logged. Detective Haskins indicated that it was probably his decision to put the merchandise in the yard. However, Donna Jackson from Wal-Mart's Corporate Fraud Division testified that both Elder and Womack were instrumental in instructing other employees which property was to be taken out onto the lawn. After the items had been inventoried, Wal-Mart placed them into a U-Haul truck.
While most of the property was on Clark's lawn, local media arrived to cover the story. The next morning, The Morning News featured the merchandise seizure on its front page with the headline "Police seize stolen electronic equipment believed to have come from Wal-Mart." The story was accompanied by a photograph of the property laid out in Clark's yard. The caption under the photograph read: "Rogers police and Wal-Mart employees examine about $50,000 worth of items collected from a Spruce Street residence Monday as part of a continuing theft investigation." The article listed Clark's street address, and Clark's wife was one of several people identifiable in the photograph. The article quoted Detective Haskins as a source of some of its information. On August 19, 1998, the Benton County Daily Record published a similar article.
In his written notes, Clark stated that the contents of his home and shop which were seized by Wal-Mart amounted to an accumulation of over twenty years of business and hobby. In addition to his work at Wal-Mart, Clark had maintained a workshop in his home since the 1970's where he operated an electronics repair business known as Clark's Repair Service. Clark also performed electronics repair work for many different departments of Wal-Mart, including the Wal-Mart Associates' Store. Clark was a frequent customer of the Associates' Store, a store where damaged or salvage merchandise from the retail stores is sent for sale to Wal-Mart employees at discounted prices. During much of the time in question, Clarence Leis was the manager of the Associates' Store. Leis often asked Clark to repair items for the store, and there was evidence that he informed Clark that he could keep some items that he could not repair. Clark did many of the repairs at home on his own time without charging Wal-Mart for anything other than the cost of parts. Elder stated that, during the course of his investigation of Clark, he interviewed a new manager of the Associates' Store. However, Elder admitted that he did not make any attempt to interview Leis before searching Clark's residence because Leis had not been with Wal-Mart for two years. Elder acknowledged that, on the day the property was seized from Clark's residence, Clark informed him that he was repairing items for Wal-Mart.
On August 25, 1998, loss-prevention officers Elder and Womack presented a case synopsis detailing the investigation to Wal-Mart supervisory personnel, the police, and the prosecutor's office. Melinda Hass, a Wal-Mart personnel manager, testified that David Clark was officially terminated from his employment with Wal-Mart, and that the decision to terminate him was based on Elder's report. According to both Melinda Hass and ...
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