Opinion
No. 04-02-00458-CV.
Delivered and Filed: June 11, 2003.
Appeal from the 229th Judicial District Court, Starr County, Texas, Trial Court No. DC-95-61, Honorable Alex W. Gabert, Judge Presiding.
REVERSED AND RENDERED.
Sitting: Alma L. LOPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice. Dissenting opinion by: Alma L. Lôpez, Chief Justice.
Appellants Wal-Mart Stores, Inc. ("Wal-Mart") and Wayne Cruickshank appeal the trial court's judgment arguing that there is insufficient evidence to support the jury's findings, that the trial court erroneously denied their motion to transfer venue, and that the judgment improperly awards a double recovery. Because we find that the evidence is legally insufficient to support the jury's findings of malicious prosecution, intentional infliction of emotional distress, and negligent hiring, we reverse and render judgment in favor of Wal-Mart and Cruickshank.
Background
Cruickshank, a loss prevention investigator for Wal-Mart had received an internal Wal-Mart report describing the infamous "Mickey Mouse" gang. This gang had been shoplifting from Wal-Mart and other retailers. According to the report, the modus operandi of the gang was to use juveniles to steal the merchandise while the adults acted as look-outs. The juveniles would line the shopping baskets with cardboard paper, place merchandise in the basket, and then place clothing on top of the basket to hide the merchandise. The juveniles would then walk out with the merchandise. If the juveniles were apprehended leaving the store, the adults could flee the scene and avoid prosecution. Meanwhile, the juveniles would eventually be released from police custody without facing prosecution.
On the afternoon of June 15, 1994, Cruickshank observed two Hispanic juvenile males in the stationary department take colored poster paper from the shelf and line two shopping carts with the paper. Cruickshank then saw the juveniles push the shopping carts into the electronics department where they were directed by adults to place merchandise into the shopping carts. As the juveniles attempted to leave the electronics department with the merchandise, Cruickshank intercepted the juveniles and detained them for questioning. While the juveniles were being detained, all of the adults, except a man and a woman whom Cruickshank suspected were the juveniles' parents, left the store. Cruickshank interrogated the juveniles in a back room in front of these "suspected" parents; however, the "suspected" parents and the juveniles all denied knowing one another. Cruickshank then called the Round Rock Police Department. Sergeant Jack Abbott was dispatched to the store. When Abbott arrived, the "suspected" parents left the store. The man left in a black Chevrolet Blazer while the women departed in an orange Chevrolet.
According to Cruickshank, there were five security cameras in the electronics department. Two cameras in the ceiling were not working. Two camcorders on the back aisle acted as security cameras and were placed at shoulder level. The final camera was in the ceiling and had a view of the cash register shooting down the front aisle of the electronics department. Although Cruickshank testified at trial that he had not reviewed the videotape from this final camera, he admitted that he would have been able to see the shoplifters had he watched it. Cruickshank testified that he gave Abbott the only videotape showing the incident and that he did not make a copy. However, at trial, Abbott could not remember receiving a videotape. Moreover, although Wal-Mart policy requires employees to document the distribution of such a videotape to the police department in an evidence log, Cruickshank failed to log the distribution of this videotape to the Round Rock Police Department.
At 6:00 p.m. on the evening of the incident, Cruickshank prepared a voluntary statement for the police in which he affirms that he observed two Hispanic juvenile males remove merchandise from the shelves; he also affirms that he saw a Hispanic female aid the juvenile males. Two days after the juveniles were taken into custody, Abbott met with Detective Hamby, an officer with the Houston Police Department, John Smith, a Wal-Mart employee with their Investigative Task Force, and Steve Vina, another loss-prevention employee with Target. Detective Hamby, who had been investigating this "Mickey Mouse" gang, had a list of suspects, along with their driver's license numbers and/or Texas Identification Card Numbers. Using Hamby's list of suspects, Abbott called the Texas Department of Public Transportation and requested copies of the photographs on the driver's licenses and identification cards for these suspects. Abbott then retrieved the photographs from the Austin office of the DPS.
Cruickshank received a call at home from the Round Rock Police Department asking that he come in for a photo line-up. Using the photos from DPS, Officer Robert Shumaker presented Cruickshank with a photo line-up. From the line-up, Cruickshank identified Maria Cristina Flores, Judy Martinez, Annette Perez, Carmen Solis, Felipe Rios Hernandez, and Irene Perez Aguilera (the plaintiff in the underlying lawsuit). Cruickshank then prepared a second, much more detailed statement in which he names all of the adults who aided the juveniles.
On the day the juveniles were arrested, Judy Martinez, also identified as a suspect by Cruickshank, had gone to the Round Rock police station and attempted to claim the juveniles. Officer Abbott told her that she needed to come back with proof that the juveniles belonged to her. On the same day that Cruickshank made the photo identifications, Martinez was driving back from Houston with the necessary proof for one of the juveniles. The guardian of the other juvenile was Irene Aguilera's mother. Because Aguilera's mother was elderly and disabled, Aguilera accompanied her mother to Round Rock to pick up the juvenile. They both rode with Martinez. When the threesome arrived at the juvenile detention facility, Officer Abbott received a call informing him that they were there. Now armed with Cruickshank's identifications and written statements, Abbott acquired arrest warrants for Aguilera and Martinez. Aguilera and Martinez were arrested at the detention center. Aguilera was in jail for a month before her family could accumulate the money for her bail. According to Aguilera, she was physically assaulted during this time in jail. After she made bail, she was under house arrest. As a result of her arrest and detention, Aguilera developed post-traumatic stress disorder. The District Attorney's office later dismissed the charge of engaging in organized criminal activity against her. At trial, the mailman responsible for delivering the mail to Aguilera's home testified that Aguilera met him at the door of her Houston home on June 15, 1994 and could not have been in Round Rock committing shoplifting. Aguilera also testified that she was at home on the day in question.
Because Aguilera died before trial, her deposition testimony was read into the record.
Aguilera filed suit against Wal-Mart and Cruickshank, alleging claims of malicious prosecution, intentional infliction of emotional distress, and negligent hiring. At trial, the jury found that Wal-Mart and Cruickshank maliciously prosecuted Aguilera and intentionally inflicted emotional distress upon her. The jury also found that Wal-Mart was negligent in its hiring of Cruickshank. Based upon the affirmative liability findings as to the malicious prosecution and intentional infliction of emotional distress claims, the jury awarded actual damages in the amount of $6.5 million. Based upon its finding of negligent hiring, the jury awarded an additional $6.5 million in actual damages. The jury also assessed $3,700 in exemplary damages against Cruickshank and $1 in exemplary damages against Wal-Mart. The final judgment awards plaintiffs approximately $20 million. Wal-Mart and Cruickshank appeal.
Standard of Review
In their first three issues, Wal-Mart and Cruickshank contend that there is legally and factually insufficient evidence to support the jury's findings on malicious prosecution, intentional infliction of emotional distress, and negligent hiring. In reviewing a "no evidence" issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). If there is more than a scintilla of evidence to support the finding, the finding will be upheld. Formosa Plastics Corp. USA v. Presidio Engineers Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). In reviewing a factual sufficiency point, we are required to weigh all of the evidence in the record. Tex. Dep't of Mental Health Mental Retardation v. Rodriguez, 63 S.W.3d 475, 480 (Tex.App.-San Antonio 2001, pet. denied). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.
Malicious Prosecution
There are seven elements of a malicious prosecution claim in Texas: (1) the commencement of a criminal prosecution against the plaintiff; (2) initiation or procurement of the prosecution by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the lack of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage suffered by the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). According to Wal-Mart and Cruickshank, there is legally and factually insufficient evidence (1) that Cruickshank initiated or procured Aguilera's prosecution, (2) that the criminal case terminated in Aguilera's favor, (3) that Cruickshank lacked probable cause, and (4) that Cruickshank acted with malice. We hold that there is legally insufficient evidence that Cruickshank lacked probable cause.
In the context of malicious prosecution, probable cause is defined as the existence of those facts and circumstances that would excite a belief in a reasonable person, acting on the facts within his knowledge, that the person charged was guilty of a crime. Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983). The probable cause inquiry asks whether a reasonable person would believe a crime had been committed, given the facts as the defendant honestly and reasonably believed them to be before the criminal proceedings were instituted. Id. The question is not what the actual facts were, but what the defendant honestly and reasonably believed the facts to be. Closs v. Goose Creek Consol. ISD, 874 S.W.2d 859, 877 (Tex.App.-Texarkana 1994, no writ). When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact is charged with resolving conflicts in the evidence to determine if probable cause exists. Richey, 952 S.W.2d at 518. If the facts are uncontested, then the question of whether defendant acted based upon probable cause becomes a question of law to be decided by the court. Id.
Appellees argue that Cruickshank acted without probable cause because he unreasonably failed to review the Wal-Mart videotape that he admits would have shown the perpetrators of the crime. While it is true that Cruickshank could have reviewed the videotape to confirm the identity of the suspects, the proper inquiry is not whether Cruickshank was negligent in failing to view the videotape; the proper inquiry is whether a reasonable person would have believed that Aguilera had committed the offense of shoplifting. It is undisputed that Cruickshank witnessed individuals shoplifting and that after looking at the picture of Aguilera in the photo line-up, he thought that Aguilera was the woman he saw aiding the juveniles. These undisputed facts amount to probable cause.
Appellees also argue that there is evidence of probable cause because the jury could infer that Cruickshank withheld the videotape from the police. It is immaterial, however, to the probable cause inquiry that the defendant did not fully and fairly disclose all material information. In Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 519 (Tex. 1997), the Texas Supreme Court held that failing to fully and fairly disclose all material information and knowingly providing false information to the prosecutor are relevant to the malice and causation elements of a malicious prosecution claim but have no bearing on probable cause. . . . The probable cause inquiry asks only whether the complainant reasonably believed that the elements of a crime had been committed based on the information available to the complainant before criminal proceedings began. When a complainant reasonably believes a crime has occurred, the reasonableness of that belief is not negated by the failure to fully disclose all relevant facts to the officer. Thus, the extent of the disclosure to the prosecutor is not probative of lack of probable cause, but rather indicates whether the complainant may have acted with malice or may have, by knowingly providing false information, caused the prosecution.
There is, therefore, legally insufficient evidence to support the jury's finding of lack of probable cause. We sustain this issue.
Intentional Infliction of Emotional Distress Additionally, Wal-Mart and Cruickshank argue that there is no evidence to support the jury's finding on intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress are (1) that the defendant acted intentionally or recklessly, (2) that the defendant's conduct was extreme and outrageous, (3) that the defendant's conduct was directed at the plaintiff or at a third person in the plaintiff's presence, (4) that the defendant's conduct proximately caused the plaintiff emotional distress, and (5) that the emotional distress suffered by the plaintiff was severe. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam).
According to Wal-Mart and Cruickshank, there is no evidence that Cruickshank's conduct was extreme and outrageous. Whether a defendant's conduct is "extreme and outrageous" is a question of law. Bradford, 48 S.W.3d at 758. The mere fact that a defendant's conduct is tortious or otherwise wrongful does not, standing alone, necessarily render it "extreme and outrageous." Id. Instead, to be "extreme and outrageous," conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citation omitted).
Appellees respond that Cruickshank's conduct was extreme and outrageous because it is outrageous "for a person with the training, and vested with the authority, responsibility, and power of Cruickshank to withhold exculpatory information from the police and utterly fail to review that information himself when levying an allegation that was certain to result in the arrest of another human being, and likely to result in lengthy incarceration."
In Bradford v. Vento, 48 S.W.3d 749 (Tex. 2001), Taylor and Vento, partners of a sports memorabilia store had a dispute over whether Taylor had sold the store to Vento. On separate occasions, each partner told Bradford, the manager of the mall in which the store was located, that he was the current owner of the store. One day, Taylor and Vento were in a heated argument in the store when one of them called the police. According to Vento, when asked by the police who owned the store, Bradford told the police that Taylor owned the store and threatened to file criminal trespassing charges against Vento if he returned. Id. at 758. Bradford did not inform the police that there was a dispute over the ownership of the store. See id. The supreme court held that Bradford's conduct was not extreme and outrageous, noting that Bradford was trying to quell the disturbance in the mall, which he was within his legal rights to do. Id. The court emphasized,
Although Bradford could certainly have given the police more information than he did, his failure to do so was not extreme and outrageous. By responding to the police officer's question, Bradford was merely exercising his rights as mall manager in a permissible way; without more his behavior does not amount to extreme and outrageous conduct.
Id. at 759.
Here, like Bradford, Cruickshank was merely exercising his legal right, in this case, his right to report that a crime had occurred. And, like Bradford, while Cruickshank could have reviewed the videotape to be certain of his identification and could have given the police the videotape, his failure to do so does not amount to extreme and outrageous behavior. We decline to hold that simply failing to review a videotape and failing to give the videotape to the police is conduct so extreme and outrageous as to go beyond all possible bounds of decency. As such, we hold that there is legally insufficient evidence to support the jury's finding that Cruickshank's conduct was extreme and outrageous. We sustain this issue.
Negligent Hiring
Wal-Mart and Cruickshank also argue that there is no evidence to support the jury's negligent hiring finding. Claims against an employer for negligent hiring, supervising, training, or retaining an employee are based on the theory of direct liability — not vicarious liability. LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 n. 9 (Tex.App.-Amarillo 1997, writ denied). The elements of a cause of action for negligently hiring, supervising, training, or retaining an employee are the following: (1) the employer owed the plaintiff a legal duty to hire, supervise, train, or retain competent employees; (2) the employer breached that duty; and (3) the breach proximately caused the plaintiff's injury. Id. at 137. However, the employer cannot be held liable if the employee does not commit an actionable tort recognized under common law. Gonzales v. Willis, 995 S.W.2d 729, 139-40 (Tex.App.-San Antonio 1999, no pet.). As such, negligent hiring is a dependent tort. Id. Here, there is no evidence of an actionable tort committed by Cruickshank. We, therefore, sustain this issue.
Other issues
Wal-Mart and Cruickshank also complain that the trial court erroneously denied their motion to transfer venue and that the judgment improperly awards double recovery. Because we have sustained Wal-Mart and Cruickshank's first three issues, we need not reach these other issues.
Appellees concede in their brief that the judgment does improperly award them double recovery.
Conclusion
As there is legally insufficient evidence to support the jury's findings on malicious prosecution, intentional infliction of emotional distress, and negligent hiring, we reverse the judgment of the trial court and render judgment in favor of Wal-Mart and Cruickshank.
In finding that the evidence is legally insufficient to support the probable cause element of the appellees' malicious prosecution claim, I believe the majority misapplies the applicable standard of review. For this reason, I respectfully dissent.
In conducting a legal sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, the evidence is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83. Because a court of appeals is not a fact finder, we may not pass upon a witness's credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).
During oral argument, counsel for the appellants repeatedly stated that the issue of probable cause was a question of law. "Whether probable cause is a question of law or a mixed question of law and fact depends on whether the parties dispute the underlying facts." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997). "When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact must weigh the evidence and resolve conflicts to determine if probable cause exists, as a mixed question of law and fact." Id. The facts in this case could not be more clearly in dispute. Cruickshank identified Aguilera as being involved in a theft offense. Aguilera testified that she was not present at the scene and had an alibi to support her testimony.
"Once [the] opposing parties have entered into a factual contest on the issue of probable cause, a factual issue is created for resolution by the trier of fact." Akin v. Dahl, 661 S.W.2d 917, 920 (Tex. 1983). "This is the cornerstone of our judicial system." Id. "`When the facts are in controversy the question of probable cause must necessarily go to the jury, and then the court must give such instruction as will enable them to draw the correct conclusion from the facts as they may find them and the law thus given.'" Id. (quoting Landa v. Obert, 45 Tex. 539, 543 (Tex. 1876)) (citations omitted).
In the context of a malicious prosecution cause of action, probable cause is defined as the existence of facts and circumstances that would excite a belief in a reasonable person, acting on the facts within his knowledge, that the person charged is guilty of a crime. Richey, 952 S.W.2d at 517. "The probable cause inquiry asks only whether the complainant reasonably believed that the elements of a crime had been committed based on the information available to the complainant before criminal proceedings begin." Id. at 519.
The key to the jury affirmatively finding no probable cause in this case is based on the facts it determined to be within Cruickshank's knowledge. Cruickshank testified that a videotape existed that showed every person involved in the offense. Cruickshank testified that he gave that videotape to Officer Abbott, but Officer Abbott did not recall receiving the videotape. No evidence was introduced to prove that Cruickshank completed a log showing that he had given Officer Abbott the videotape in accordance with company policy. Furthermore, neither the evidence receipt Cruickshank allegedly received from Officer Abbott nor the videotape was produced at trial. From this evidence, the jury could make a credibility determination that Cruickshank did not give Officer Abbott the videotape.
Q: So, there's no question but had you looked at the videotape you could have compared it because you know you're positively sure of your photo identifications, they would have jibed.
• Yes, sir.
Cruickshank testified that he did not watch the videotape, but he also knew that his job performance was based upon the number of apprehensions he made and the dollar value of the prevented theft. From this evidence, the jury could make a credibility determination that Cruickshank had watched the videotape and infer that the videotape would not have supported Cruickshank's identification of Aguilera. This inference is bolstered by the evidence that Cruickshank identified at least one other individual as being involved in the offense who was not prosecuted based on alibi testimony. Based on the evidence as a whole, the jury could have disbelieved that the true facts within the knowledge of Cruickshank would excite a belief in a reasonable person that Aguilera was guilty of a crime. See Akin, 661 S.W.3d at 921 (holding evidence supported jury finding of no probable cause where conflicting evidence was presented with regard to whether a reasonable basis in the known facts supported a belief that plaintiff was mentally incompetent even though physician records supported finding of mental incompetency); San Antonio Credit Union v. O'Connor, No. 04-00-00714-CV, 2002 WL 31662054, at *7-8 (Tex.App.-San Antonio Nov. 27, 2002, no pet. h.) (holding jury could have found that complainant's belief that plaintiff misappropriated loan funds was unreasonable based on conflicting evidence); First Valley Bank of Los Fresnos v. Martin, 55 S.W.3d 172, 184 (Tex.App.-Corpus Christi 2001, pet. filed) (holding evidence supported no probable cause finding where evidence was presented that defendant could not have reasonably believed that plaintiff committed crime); King v. Graham, 47 S.W.3d 595, 607-08 (Tex.App.-San Antonio 2001, no pet.) (holding more than a scintilla of evidence existed to support finding of no probable cause where evidence was offered to show that defendant's version of the facts was inaccurate). "While the jury was not required to believe [Aguilera's] story and could have rejected it, it was certainly within the jury's province to accept it." Richey, 952 S.W.2d at 521 (Cornyn, J., dissenting).
Interestingly, Cruickshank received a commendation letter and a raise for his actions relating to the theft offense.
The reason the jury could have chosen to simply disbelieve that Cruickshank honestly and reasonably believed that Aguilera was present during the offense could not be more heavily documented in the record. Cruickshank lied at his deposition about graduating from high school. Cruickshank lied at his deposition about receiving certain awards and medals while serving in the Navy. Cruickshank lied about needing authorization from the President of the United States before disclosing the reason for receiving one of those awards. Cruickshank admitted that he lied on his Wal-Mart application. Cruickshank's initial statement to the police identified only one other female assisting two juveniles with the theft by placing clothes on top of merchandise in a shopping cart. Cruickshank did not identify Aguilera's alleged role in acting as a lookout until his second statement was taken two days later. The jury could have questioned whether Cruickshank honestly believed that the additional individuals identified in his second statement were present given Cruickshank's failure to initially mention them and given that Cruickshank's performance was evaluated in part based on the number of apprehensions he made. Finally, the jury could have believed that Cruickshank lied about giving Officer Abbott the videotape and about not viewing the videotape. In sum, the jury had every reason to find that Cruickshank's testimony about the facts within his knowledge was false and that the facts that were within Cruickshank's knowledge would not excite a belief in a reasonable person that Aguilera was guilty of a crime.
Because I believe the majority passes upon the witnesses' credibility and substitutes its judgment for that of the jury, I respectfully dissent.