Whitlow v. Bruno's Inc.

• Decision Date: 13 July 1990
• Citation: 567 So.2d 1235
• Parties: Pamela Jean WHITLOW v. BRUNO'S, INC., et al. 89-378.
• Court: Alabama Supreme Court

Page 1235

567 So.2d 1235

Pamela Jean WHITLOW v. BRUNO'S, INC., et al.

89-378.

Supreme Court of Alabama.

July 13, 1990.

Rehearing Denied Sept. 14, 1990.

Robert F. Prince and Jon M. Turner, Jr., of Prince, Turner & Nolen, Tuscaloosa, for appellant.

John A. Owens and K. Scott Stapp of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.

PER CURIAM.

Pamela Jean Whitlow appeals from a summary judgment entered in favor of Bruno's, Inc., and its agents in a lawsuit charging Bruno's with malicious prosecution, false imprisonment, false arrest, intentional infliction of emotional distress, slander, misrepresentation, invasion of privacy, and assault. Because Whitlow makes no arguments in her brief regarding her claims for false arrest, intentional infliction of emotional distress, slander, or invasion of privacy, no discussion regarding those claims is necessary.

The underlying facts and proceedings in this case may be briefly stated. In November 1987, Pamela Jean Whitlow and a male friend entered the Bruno's grocery store located on McFarland Boulevard in Tuscaloosa. Ms. Whitlow went to the section of the store that rents taped movies for videocassette players. After deciding which videotaped movies to rent, Ms. Whitlow went to the video counter and showed the employee behind the counter her membership card. Ms. Whitlow then asked the employee if she could pay the videotape rental fee at the check-out counter along with her groceries. The employee consented, but only after Ms. Whitlow had signed a coded pink slip of paper assuming liability for the tapes. The employee instructed Ms. Whitlow to give the cashier the coded pink slip of paper when she checked out, so that the rental fee could be paid at that time. The employee then looked up Ms. Whitlow's membership application and gave her the two videotapes she had selected. Ms. Whitlow placed the two tapes into her shopping cart and completed her grocery shopping.

When Ms. Whitlow arrived at the check-out counter, she paid for her grocery items in cash but failed to pay for the two videotape rentals. ¹ She went through the check-out line and exited the store, pushing the grocery cart. Michael Fike, the "front end" manager for Bruno's followed Ms. Whitlow outside and asked her if she had anything that belonged to Bruno's. Ms. Whitlow explained that she had merely forgotten about the tapes and asked Fike if she could pay the rental fee. Fike replied that the manager would have to make that decision. Fike then asked her to come back into the store. Ms. Whitlow was taken to an office inside the store, where she was questioned by Sidney Cannon, the manager on duty. The police were called shortly thereafter. Police Officers Baker and Thompson arrived and questioned Bruno's employees and Ms. Whitlow. After handcuffing Ms. Whitlow, the officers took her down to police headquarters. She was then transferred to the county jail and was eventually released on bond later that night.

On January 13, 1988, a preliminary hearing was held in the District Court of Tuscaloosa County, wherein the court found sufficient probable cause to bind Ms. Whitlow's case over to the Tuscaloosa County grand jury.

On January 29, 1988, Ms. Whitlow was indicted by the Tuscaloosa County grand jury for theft of two videocassette tapes. On August 19, 1988, she was tried in the Circuit Court of Tuscaloosa County, where she was found not guilty.

The issue presented for our review is whether the trial court erred in ruling, as a matter of law, that there was no substantial evidence of 1) malicious prosecution; 2) false imprisonment; 3) assault; and 4) misrepresentation.

Rule 56, A.R.Civ.P., requires that, in order to enter a summary judgment, the court determines that 1) there is no genuine issue of material fact and 2) the moving party is entitled to a judgment as a matter of law. The action in the present case was commenced after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12 (Supp.1988).

The plaintiff in a malicious prosecution case must prove each of the following elements: 1) that a prior judicial proceeding was instigated by the defendant 2) without probable cause and 3) with malice; 4) that that prior proceeding was terminated in the plaintiff's favor; and 5) that the plaintiff suffered damages as a result of that prior proceeding. Alabama Power Co. v. Neighbors, 402 So.2d 958 (Ala.1981). The Neighbors Court further explained why such a heavy burden of proof is necessary in malicious prosecution cases:

"[T]he plaintiff must prove [all of the elements] ... in order to prevail because an action for malicious prosecution is not favored at law. This Court stated its reasoning for such a rule in Birwood Paper Co., [v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969) ], citing Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959):

" '[A]nyone who has reasonable cause to believe that there is reasonable cause for legal redress and protection has a lawful right to seek such redress without risk of being sued and having to respond in damages for seeking unsuccessfully to enforce his rights.' "

Neighbors, supra, at 962.

It is almost platitudinous to restate the well-entrenched rule that in malicious prosecution cases the finding of an indictment by a grand jury, against a defendant in a prior judicial proceeding, constitutes prima facie evidence of the existence of probable cause. Lumpkin v. Cofield, 536 So.2d 62 (Ala.1988). As further noted in Lumpkin however, "[s]uch a prima facie defense can be overcome by a showing that the indictment 'was induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment' " Id. at 64 (citation omitted).

In support of her argument that Bruno's lacked probable cause, Ms. Whitlow states in her brief, in part, as follows:

"[The police] were not informed that Pam Whitlow had a membership card, that her application had been approved by the Defendants, and that the Defendants had her verified name, address and telephone number (Deposition of T. Cannon p. 69). [Moreover,] the police were not shown the membership application or told of Bruno's policy with regard to late movie returns by customers.

....

"In addition, at the trial of Pam Whitlow, the Defendants could not produce the membership application of Pam Whitlow (R. 124). Nor could they produce the alleged stolen tapes (R. 70). This inability to produce exculpatory documents or the tapes themselves was substantial evidence of misconduct on the part of Defendants to rebut the grand jury indictment.

"The membership form between Pam Whitlow and Defendant, Bruno's, Inc., contained all the terms and conditions of the obligations and duties between the parties (R. 135-136). The failure of the Defendants to call this agreement to the attention of the law enforcement officers, the District Court, and grand jury constitutes substantial evidence of suppression of evidence. The membership form contained the following term and condition: Member will be liable for criminal prosecution for failing to return any and all of the same equipment (R. 136). [Emphasis added.] Not until a person fails to return equipment can they be responsible for criminal prosecution under the contract. Clearly the contract itself was substantial evidence of the lack of probable cause."

Although this argument has a certain allure, we do not find the argument persuasive. As stated in this opinion, Ms. Whitlow asked the Bruno's employee who worked behind the counter at the video section of the store if she could pay the rental fee for the tapes at the check-out counter along with her groceries. Therefore, notwithstanding the fact that the membership contract between Ms. Whitlow and Bruno's is devoid of any language stating that the customer must pay the rental fee in advance, Ms. Whitlow, nevertheless, did agree to pay in advance. Therefore, Ms. Whitlow's failure to pay the rental fee for the tapes at the check-out counter supports a finding of probable cause. Having so found, we pretermit any discussion of the four remaining elements of malicious prosecution.

With respect to the false imprisonment issue, Code 1975, § 15-10-14(a) and (c), is dispositive:

"(a) A peace officer, a merchant or a merchant's employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant or merchant's employee shall not render such police officer, merchant, or merchant's employee criminally or civilly liable for false arrest, false imprisonment or unlawful detention."

. . . . .

"(c) A merchant or a merchant's employee who causes such arrest as provided for in subsection (a) of this section of a person for larceny of goods held for sale shall not be criminally or civilly liable for false arrest or false imprisonment where the merchant or merchant's employee has probable cause for believing that the person arrested committed larceny of goods held for sale."

A merchant, pursuant to § 15-10-14(a) and (c), is given the statutory right to detain a person if he has probable cause for suspecting that items from his store have been unlawfully taken. It must therefore be ascertained whether Bruno's had probable cause to detain Ms. Whitlow.

It is without dispute that Ms. Whitlow walked out of the Bruno's grocery store with two videotapes without first paying for them. Although Ms. Whitlow maintains that she mistakenly walked out of the store without first paying the rental fee, she nevertheless concedes that she walked out of Bruno's with the videotapes. Moreover, a...