Summary
affirming summary-judgment dismissal of tort claims where officer detained plaintiff to investigate credit-card abuse and charge for resisting arrest, search, or transport was dismissed
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No. 05-11-00068-CV
05-11-2012
ROLAND JONES, Appellant v. WAL-MART STORES TEXAS, LLC, Appellee
AFFIRM; Opinion Filed May 11, 2012.
On Appeal from the 298th District Court
Dallas County, Texas
Trial Court Cause No. 09-08737-M
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Moseley
Roland Jones, appealing pro se, appeals from a summary judgment granted in favor of Wal- Mart Stores Texas, LLC in his suit for negligence, defamation, assault, and false imprisonment. In a single issue on appeal, Jones challenges the trial court's order granting Wal-Mart's no evidence summary judgment motion. He does not appeal the trial court's order granting Wal-Mart's traditional summary judgment. The background of the case and the evidence adduced below are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
As discussed in herein, we overrule Jones's challenge to the trial court's order granting Wal-Mart's no evidence motion for summary judgment. However, because the trial court's order did not specify the basis for its ruling and Jones failed to challenge the trial court's order granting the traditional motion for summary judgment, we also could affirm the trial court's judgment on this basis as well. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (when trial court's order granting summary judgment does not specify the basis for the ruling, the appellant must argue that every ground of the summary judgment motion is erroneous).
Wal-Mart's summary judgment evidence included an affidavit by Matthew St. Clair, a Garland police officer who was working off-duty as a security officer for Wal-Mart when he encountered Jones. St. Clair averred that some Wal-Mart employees informed him of a customer (later determined to be Jones) who was acting suspiciously in his attempts to use a credit card to purchase merchandise. The employees told him that Jones attempted to use a credit card to purchase merchandise and, when asked for identification, Jones told the cashier he did not have identification with him and left the register with the credit card and merchandise. Jones then walked to a different register to purchase the goods. St. Clair observed Jones's second attempt to purchase the merchandise; Jones was denied again because he did not have proper identification. Jones does not dispute that St. Clair received the report of suspicious behavior or that St. Clair witnessed Jones's second attempted purchase.
St. Clair averred that he believed Jones's "activities were suspicious and consistent with someone attempting to commit the crime of credit card fraud." St. Clair (who was wearing his police uniform) stopped Jones to determine whether a crime was being committed. When asked whether he had any weapons in his possession, Jones refused to answer. St. Clair was concerned by Jones's refusal to answer and so he began a pat-down search of Jones's outer clothing-Jones pulled away, which caused St. Clair to think Jones was attempting to flee or retrieve a weapon. St. Clair pulled Jones to the ground, handcuffed him, placed him under arrest for resisting arrest, search or transport, and took Jones to the store's loss prevention office. Subsequently, Jones was transported to the Garland jail for booking. The charges were later dismissed-the credit card did belong to Jones.
After an adequate time for discovery, the party without the burden of proof may move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim. Tex. R. Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The motion must specifically state the elements for which there is no evidence. Tex. R. Civ. P. 166a(i). The burden shifts to the nonmovant to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact as to each essential element identified in the motion. Tex. R. Civ. P. 166a(i) & cmt.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
The focus of Wal-Mart's no evidence motion and of Jones's appeal is whether St. Clair acted in his capacity as a police officer or a Wal-Mart employee during his encounter with Jones because Jones's lawsuit alleges Wal-Mart is responsible for St. Clair's actions under the doctrine of respondeat superior. We resolved this issue (with a factual situation similar to the one before us now) in Ogg v. Dillard's, Inc, 239 S.W.3d 409 (Tex. App.-Dallas 2007, pet. denied). To determine whether an officer who is working off-duty acts as a police officer or private employee, we "'analyze the capacity in which the officer acted at the time he committed the acts for which the complaint is made.'" Id. at 418(quoting Morgan v. City of Alvin, 175 S.W.3d 408, 416 (Tex. App.-Houston [1st Dist.] 2004, no pet.)). If an officer acts to protect the employer's property, eject trespassers, or enforce the employer's rules and regulations, the fact finder must decide whether the officer acted as a public officer or employer's servant. Ogg, 239 S.W.3d at 418 (quoting Mansfield v. C.F. Bent Tree Apartment Ltd. P'ship, 37 S.W.3d 145, 150 (Tex. App.-Austin 2001, no pet.)). However, when the officer performs a public duty, including enforcing general laws, the officer's private employer is not vicariously responsible for the officer's acts-even if the private employer directed the activities. Id.; see also Morgan, 175 S.W.3d at 417 ("If an off-duty officer observes a crime, as a matter of law, he becomes an on-duty officer for purposes of determining whether or not a private employer is vicariously liable for the officer's actions."); City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex. App.-Dallas 1994, no writ). An officer's public duty may be triggered when he has a reasonable suspicion to detain a person for investigation. Ogg, 239 S.W.3d at 418(citing Morgan, 175 S.W.3d at 417).
On appeal, Jones cites Dillard's, Inc. v. Newman, 299 S.W.3d 144 (Tex. App.-Amarillo 2008, pet denied) to support his argument that "embedded fact issues" make the trial court's no evidence summary judgment ruling erroneous. In an interlocutory appeal, the Newman court considered "whether official immunity extends to a governmental employee privately working as an off-duty security guard." Newman, 299 S.W.3d at 145. The Newman court did not discuss whether the officer acted in his public capacity as a police officer or as a private employee of the retailer, and issues of governmental immunity are not before this Court. The Newman case is not relevant to our analysis.
The summary judgment evidence shows St. Clair detained Jones to investigate a possible crime: credit card abuse, see Tex. Pen. Code. Ann. § 32.31 (West 2010). When St. Clair detained Jones, St. Clair had a reasonable suspicion that Jones was engaged in criminal activity based on information from Wal-Mart employees regarding Jones's suspicious behavior with respect to the first attempted purchase using a credit card without proper identification and his observation of Jones's second attempt to purchase the goods using the card without identification. There is no genuine issue of material fact about whether, in detaining Jones to investigate a possible crime, St. Clair acted to enforce a general law in his official capacity as a police officer. See Ogg, 239 S.W.3d at 418-20.
Because St. Clair acted in his official capacity during the detention, he was not acting as a Wal-Mart employee. Therefore, Wal-Mart is not vicariously liable for St. Clair's actions. See id. We overrule Jones's sole issue and affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
110068F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROLAND JONES, Appellant
V.
WAL-MART STORES TEXAS, LLC, Appellee
No. 05-11-00068-CV
Appeal from the 298th District Court of Dallas County, Texas. (Tr.Ct.No. Cause No. 09-08737-M).
Opinion delivered by Justice Moseley, Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Wal-Mart Stores Texas, LLC recover its costs of this appeal from appellant Roland Jones.
Judgment entered May 11, 2012.
JIM MOSELEY
JUSTICE